Listed
Buildings and Conservation Areas
A
Brief Guide to their Protection and the Alterations which Require
Consent
Buildings which are listed or which lie within a conservation area
are protected by law. This does not mean that you can never alter
or demolish one, but carrying out relevant work without the appropriate
consent is a criminal offence. Unfortunately many building contractors
and even some architects who do not specialise in historic building
work are unaware of the alterations which require consent, leaving
them and their clients liable to criminal prosecution.
In brief the following works require consent throughout England,
Scotland, Wales and Northern Ireland:
- All works affecting a scheduled monument or the ground surrounding
it require scheduled monument consent
- The demolition or alteration of a listed building and historic
structures within its grounds requires listed building consent
- The demolition of an unlisted building in a conservation area
requires conservation area consent
- Alterations to the exterior of all buildings may also require
planning permission and an application may be needed for some
works to houses in conservation areas and other buildings affected
by an 'Article 4 direction' which otherwise would not require
one.
Although there are slight variations in the legislation protecting
historic building and conservation areas throughout the UK, the
same principles apply. In Northern Ireland while the legislation
itself is much the same, the administration of planning control
operates in a very different manner, as described at the end of
this article.
HISTORIC
BUILDINGS
Statutory planning control is effected by three different sources
of requirements. Primary legislation is provided in England and
Wales by the Town & Country Planning Act 1990 and the Planning
(Listed Buildings and Conservation Areas) Act 1990, and in Scotland
it is provided by the Town & Country Planning (Scotland) Act
1997 and the Planning (Listed Buildings and Conservation Areas)
(Scotland) Act 1997. These Acts set out the legal requirements for
the control of development and alterations which affect buildings,
including those which are listed or in conservation areas, and the
framework by which control is maintained.
Secondly, 'guidance' on Government policy on the application of
the Acts of Parliament to specific issues is provided by the relevant
Government departments. In England the guidance is Planning Policy
Guidance 15: Planning and the Historic Environment (or PPG15
as it is more usually known) which was issued in September 1994
and slightly amended by Environment Circular 14/97. Similar guidance
for Scotland is given in the Memorandum of Guidance on Listed
Buildings and Conservation Areas (1998 edition), and for Wales
in two 'circulars'; Welsh Office Circular 61/96, Planning and
the Historic Environment: Historic Buildings and Conservation Areas;
and the Welsh Office Circular 1/98 Planning and the Historic
Environment: Directions by the Secretary of State for Wales.
Thirdly and finally, at a more local level, developers and historic
building owners need to take account of the policy of the local
authority. These reflect local development requirements and pressures,
the character of the area, public opinion, and other local issues
of relevance. Policies contained in their development plans (the
'Local Plan' or 'Unitary Development Plan') are introduced following
extensive public consultation and carry most weight. Conservation
area proposal statements and appraisals, 'Supplementary Planning
Guidance' and other policy documents are also very important, particularly
when they have been through a public consultation process.
PLANNING
PERMISSION
Almost all external alterations and extensions to an existing building
require planning permission. However, certain small extensions and
other alterations are granted planning permission automatically
where they affect a house which is occupied as a 'single family
dwelling' – that is to say, it is lived in by one family only,
not subdivided to form flats. Within a conservation area these 'permitted
development' rights are more limited, and exclude for example certain
types of cladding, the insertion of dormer windows and satellite
dishes, all of which therefore require planning applications. In
Scotland changes in a roof covering are also excluded.
Permitted development rights for a prescribed range of developments
may be also be withdrawn by the local authority under an Article
4 direction. This enables the local authority to control
certain types of alteration which do so much damage to the character
of conservation areas, such as the alteration or removal of doors
and windows in particular.
No separate application is required where an unlisted building
lies within a conservation area, but the policies of the local authority
should be carefully noted as local authorities are required to pay
special attention to 'the desirability of preserving or enhancing
the character or appearance of that area' when considering an application
for planning permission.
CONSERVATION
AREA CONSENT
The demolition of a building requires conservation area consent if the
building is situated within a conservation area. (Prior to the case
of Shimuzu v Westminster City Council in 1997 'demolition' was
taken to include the demolition of part of a building, such as a chimney
stack or a front porch. However, on appeal the House of Lords ruled
that the removal of part of a building constituted an alteration, not
demolition. As a result the demolition of a part of a building in a
conservation area no longer requires conservation area consent, no matter
how important that part is to the character of the building and of the
conservation area.)
Unauthorised demolition is a criminal
offence.
LISTED
BUILDING CONSENT
No person shall execute or cause to be executed any works for the
demolition of a listed building or for its alteration or extension
in any manner which would affect its character as a building of
special architectural or historic interest, unless the works are
authorised.
Planning (Listed Buildings and Conservation Areas) Act 1990, Section
7
Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997,
Section 6
Listed building consent is required for all alterations to listed
buildings and their interiors irrespective of their grade or category
of listing. It is also required for alterations to any object or
structure which lies within the grounds or 'curtilage' of a listed
building and which was constructed before 1 July 1948. This may
be taken to include garden walls, sundials, dovecotes and other
such objects and structures as well as buildings which are ancillary
to the principal building, not separated from it, and were so at
the time of listing. It is important to note that altering a listed
building without consent is a criminal offence.
ECCLESIASTICAL
EXEMPTION
Until recently all churches and chapels in England and Wales were
exempt from listed building and conservation area controls. Since
1994, 'ecclesiastical exemption' as it is known, has been restricted
to churches and chapels of the six denominations operating an acceptable
internal system of control, provided that the building remains in
use as a place of worship. These are: the Church of England, the
Church in Wales, the Methodists, the Roman Catholics, the United
Reformed and those Baptist churches where the Baptist Union acts
in the capacity of trustee.
Ecclesiastical exemption in Scotland, which was limited to listed
building consent only, has also now been reassessed and a pilot
scheme was introduced on 1 January 1999 for a trial period of three
years. Under this scheme a congregation wishing to carry out works
to the exterior of a listed church building is now required to submit
details of the proposal to the planning authority and Historic Scotland
and obtain their agreement before undertaking the work. (For the
moment works to the interior of a listed church building remain
exempt.) Full details of the pilot scheme may be obtained from the
relevant planning authority and Historic Scotland. If the scheme
is successful, it (or a suitable modification of it) will be made
permanent.
SCHEDULED
MONUMENTS
All work to a building or a structure which is scheduled as an 'ancient
monument' requires 'scheduled monument consent', as do operations
to the ground surrounding it. Buildings which are scheduled are
usually unoccupied. Those in use are more likely to be listed, but
may include scheduled monuments within their grounds.
Parks
and Gardens
Alterations to parks and gardens generally do not require statutory
consent unless they involve development work requiring a planning
application or affecting a tree covered by a tree preservation order
(TPO). However, local planning authorities are encouraged to include
policies in their development plans for the protection of designed
landscapes and to protect 'registered' historic parks and gardens.
In England and Wales being 'registered' means inclusion on the Register
of Parks and Gardens of special historic interest. In Scotland the
register is called the Inventory of Gardens and Designed Landscapes.
There are also statutory procedures for consultation where development
is likely to affect a registered historic park or garden. The consultation
varies slightly between the regions of the UK.
Where an application affects a park or garden, Historic Scotland
can request the Planning Division of the Scottish Office to call
in the application under a 'notification directive' before the planning
authority issues their decision.
The consent of the local planning authority is required to cut
down, top, or lop a tree which is protected by a TPO. The principal
exception to this is where a tree is dying, dead or dangerous, in
which case notice should be given to the local authority before
carrying out the work. Within a conservation area anyone proposing
to cut down, top or lop a tree is also required to give the local
planning authority six weeks' notice, giving the authority the opportunity
to consider whether a TPO should be made.
THE
AUTHORITIES
The
division of responsibility initially seems confusing. In England
for example, two Government departments and English Heritage are
involved in planning matters in addition to at least two local authority
departments, several voluntary bodies and in some areas, county
and parish councils. However, almost all applications are made to
the local authority's planning department. (The local authority
is variously called the district, borough, city or county borough
council, and should not be confused with county councils and parish
councils.) In most cases the planning officer or conservation officer
appointed by the council is the only person likely to be dealing
with planning and conservation issues.
Other
local authority officers may also become involved to deal with separate
matters such as traffic and parking issues, access for the disabled,
fire safety, and the building regulations.
Particularly
interesting and contentious applications affecting historic buildings
may also involve a conservation officer from Cadw, English Heritage
or Historic Scotland.
Central
government departments are primarily responsible for legislation
and applicants are likely to come into direct contact with them
only if they appeal against a planning decision.
Where
an application has been refused consent, appeals are made through
the local authority within six weeks of the decision, and the appeal
is heard by an inspector appointed by the Secretary of State. This
can take the form of 'written representations', an 'informal hearing'
or, in extreme cases, a full 'public inquiry'.
Applications
for scheduled monument consent are made to the Secretary of State
- in practice, either Cadw, the Department of Culture, Media and
Sport (England), or Historic Scotland. In England these applications
are determined, in effect, by English Heritage.
ENFORCEMENT
It is a criminal offence
to carry out any works of alteration or extension to a listed building
in any manner which would affect its special interest, internally
or externally. So too is the demolition of all or part of a listed
building or of a building in a conservation area. Carrying out such
works without permission leaves the owner, developer and building
contractor liable to prosecution, fines and even imprisonment. The
local authority can also require the person responsible to restore
the building to its state before work commenced or to carry out
works to mitigate the effects of the damage under a 'listed building
enforcement notice'.
Where
a building which is listed or in a conservation area is allowed
to fall so far into disrepair that it is at risk, local authorities
are able to serve an 'urgent works notice'. This enables the local
authority to carry out any works which are 'urgently necessary'
and then recover the cost from the owner. However, urgent works
notices can only be served where buildings are unoccupied or on
those parts of a building which are unoccupied.
Further
powers are available under a 'repairs notice' where a listed building
is not being properly preserved. If no action is taken as a result,
the local authority may then seek the authorisation of the Secretary
of State for a compulsory purchase order. In those rare instances
where the threat of acquisition is insufficient to prompt action,
the local authority can acquire the building for immediate sale
to a building preservation trust for example, as at Sker House (see
page opposite).
NORTHERN
IRELAND
Works to buildings in the Province which are listed or in conservation
areas require the same consents as buildings in England, Scotland
and Wales, and the legislation is generally similar. In this case,
primary legislation is provided by the Planning (Northern Ireland)
Order 1991. A consultation draft of Government policy (not guidance)
was published in March 1998 entitled Draft Planning Policy Statement
6: Planning, Archaeology and the Built Heritage. It is expected
that the final version of this document will be published in March
1999.
The administration of planning controls
in Northern Ireland operates in a very different manner from the
rest of the United Kingdom as the Government currently fulfils the
planning functions of both local and national government. The Department
of the Environment for Northern Ireland (DoE) is a unitary planning
authority responsible for regulating development and the use of
land in the public interest. The Planning Service, an agency within
the Department, administers its planning functions.
A few key differences to be aware of:
- all applications for planning permission,
Listed Building Consent or conservation area consent should be made
to the DoE Planning Service
- The Environment and Heritage Service,
a separate agency within the DoE, provides specialist advice on
matters affecting the historic environment (listed buildings and
conservation areas, historic parks, gardens and demesnes, scheduled
monuments and archaeology)
- appeals are heard by the Planning Appeals
Commission
- all places of worship which are in use
remain exempt from usual listed building and conservation area consent
requirements
- trees in conservation areas are not
protected unless covered by a tree preservation order
- a non-statutory register of parks, gardens
and demesnes of special historic interest, based on a comprehensive
inventory, is being prepared for publication in 1999.
RECOMMENDED READING
- Mynors,
Charles Listed Buildings and Conservation Areas, Third edition,
Sweet and Maxwell 1999
- Guide to Historic Buildings Law,
Cambridgeshire County Council Planning Section 1997
- The Ecclesiastical Exemption
Order: What it is and how it works, The Department of National
Heritage and Cadw 1995 (Available free of charge)
- Scotland's Listed Buildings:
A guide to their protection, Historic Scotland 1998
- Listed Historic Buildings of
Northern Ireland: An owners' guide, DoE Environment and Heritage
Service 1994
