Page 44 - The Building Conservation Directory 2013

4 4 t h e b u i l d i n g c o n s e r vat i o n d i r e c t o r y 2 0 1 3 T w e n t i e t h a N N i v e r s a r y e d i t i o n
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Professional services
where house-building is perfectly acceptable.
That being the case, the new houses will not
be ‘enabling development’ in the terms of this
article. However, if, for example, the property
is in the green belt then new housing would
not normally be allowed and the issue becomes
one of whether the new houses are nonetheless
acceptable as ‘enabling development’.
Until the publication of PPS5 (Planning
Policy Statement 5: Planning for the Historic
Environment) in March 2010, which contained
a single policy on enabling development
(Policy HE11), there was no government
policy on the subject. English Heritage (EH),
however, issued its own enabling development
policy in 1999. It reissued it in 2001 together
with a detailed practical guide that drew
heavily on planning appeal decisions involving
enabling development proposals, many of
which are quoted from the guidance. The 2001
policy and guidance were both updated in
2008 and reissued as Enabling Development
and the Conservation of Significant Places,
not least to bring them into line with EH’s
thinking on the historic environment in
Conservation Principles issued earlier that
year. The 2008 guidance still stands for
now (as a revision is in prospect) as it was
broadly but not wholly consistent with PPS5,
which has in any event been superseded by
paragraph 140 of the National Planning Policy
Framework (NPPF) which says, simply, that:
Local planning authorities should assess
whether the benefits of a proposal for enabling
development, which would otherwise conflict
with planning policies but which would secure
the future conservation of a heritage asset,
outweigh the disbenefits of departing from
those policies.
The NPPF policy is expressed as a
straightforward balancing exercise: will
the proposal do more harm than good? In
reality many local planning authorities have
approached enabling development cases in
this way for years. The EH policy is, however,
more sophisticated but also more stringent
than the one-sentence NPPF policy and
also the now superseded policy in PPS5. The
EH policy requires enabling development
proposals to meet eight criteria if they are to
be considered acceptable. It is thereby more
than a ‘good v harm’ balancing exercise and
more proposals are likely to fail the test than
under the NPPF, particularly as the first
EH criterion is that the proposal will not
materially harm the heritage values of the
place or its setting.
However, as is the case with much of the
NPPF, the simple expression of the policy
position belies the complexity of the issues
in practice. It is for this reason that EH’s
practical guide will continue to have a useful
role to play, as enabling development cases
throw up some thorny issues, some of which
are discussed briefly below.
First, how much enabling development
is appropriate? What if on an NPPF “good v
harm” analysis 30 new houses in the grounds
would do more good than harm, but then
so would 20? To meet the EH criteria the
enabling development must be demonstrated
to be the minimum necessary to secure the
future of the asset. An understanding of the
financial position is therefore necessary to get
to the bottom of the conservation deficit (the
amount by which the cost of repairs exceeds
the market value of the asset when repaired)
and how much money is likely to be generated
by the scheme. Although this can never be
an exact science, the EH guide provides a
useful overview of the sorts of costs involved,
the extent to which they can legitimately
be included in the calculations and how to
factor in profit margins and site value. It urges
local authorities to take professional advice
on the financial aspects if they do not have
an in-house capability and points out that
developers who seek permission for enabling
development will need to be open about the
financial situation.
Second, it is essential that there is a means
by which the benefits claimed for an enabling
development materialise. This will involve
the use of planning conditions and usually
a section 106 agreement as well. Phasing
will often be an important factor, with the
section 106 agreement stipulating not only the
works to be done to the heritage asset but the
sequence in which they are done alongside the
new development. The situation that the local
planning authority will want to avoid is one in
which the new development proceeds too far
ahead of the repair work, with enforcement
of the repair work obligations being difficult,
particularly if the developer has run out
of money. Accordingly, restrictions upon
the occupation or construction of the new
development are often appropriate, as is the
requirement to enter into a bond that can be
called upon by the local authority if all else
fails. In these cases there is no one-size-fits-all
section 106 agreement, but the EH guidance
identifies the main issues to take into account.
Third, would the enabling development be
needed at all in the hands of another owner?
To deal with this point, the EH guide, when
re-issued in 2008, contained a new section on
‘market testing’ and how it ought to be done.
The market testing issue is consistent with the
notion that enabling development generally
ought to be a solution of last resort and that
a new owner might be willing to approach
the conservation deficit issue from a different
perspective without the need for enabling
development. It is also a means of testing the
existence of a conservation deficit, as this
would ordinarily deter buyers.
Fourth, what to do about the long term?
This is a particularly difficult issue because
of the inherent uncertainty over what may
happen in years or decades to come, but the
starting point is that enabling development
ought to be a one-off long-term solution, even
though there can be no generally applicable
definition of the ‘long term’. There are,
therefore, difficult judgements to be made
about the extent of repair work that ought to
be financed by enabling development, bearing
in mind that the greater the extent of those
repairs, the greater the amount of (otherwise
harmful) enabling development that will be
required to produce the necessary funds.
That said, the local authority will want to
avoid a situation in which, having permitted
enabling development, in a few years time the
developer or a future owner comes back and
asks for more (referred to in the EH guidance
as a ‘second bite of the cherry’). Ideally, as
well as permitting the appropriate amount of
development, there will be arrangements in
place, probably in the section 106 agreement,
whereby the ongoing management of the
asset may be assured. This also implies that
the new development will not become wholly
separated from the heritage asset in ownership
terms, a concern described as ‘fragmentation’
in the EH guidance, that term also being used
in Policy HE11 of PPS5.
The historic environment has rightly
been accorded a high priority in the planning
system from the start and that priority is
maintained by the NPPF. Although enabling
development is dealt with in short order in the
NPPF, it retains the thrust of the PPS policy
it replaced. In a difficult economic climate,
enabling development is potentially a solution
in an increasing number of situations. Not
least for the reasons mentioned in this article,
however, it remains a solution that is not for
the faint hearted.
Mark Challis is a partner at Bircham
Dyson Bell LLP. He was a member of the
drafting group assembled by English
Heritage to write the 2001 and 2008
guidance mentioned in this article.
Development enabled the conservation of this camellia house at New Wardour, Wiltshire (Photo: Jonathan Taylor)