by Paul Graves and Stewart Ross
In the 1960s and 1970s the designation of a locality as a conservation area indicated that it possessed a discernible quality which set it apart from the norm. In the past few years approximately 700 conservation areas have been designated or extended by local planning authorities, a number of which appear to contain very little of merit so far as Britain’s environmental heritage is concerned.
Why do local planning authorities now feel the need to designate mediocare parts of our towns and cities as conservation areas? Is it because they truly believe that such areas warrant conservation or is it rather that local planning authorities are dissatisfied with the level of control which they are generally able to exercise and hanker after the greater powers which accompany conservation area status?
The notion of “conservation areas” can be traced back, at least in part, to a Building Preservation Order case in the Court of Appeal in Earl of Iveagh v Minister of Housing and Local Government [4] 1 QB 395, which concerned the preservation of two adjoining houses in St James’s Square. The court held that “a building might be of special architectural or historic interest by reason of its setting as one of a group”. This rather tentative ruling led to the drafting of more general powers in what later became the Civic Amenities Act 1967.
Before this Act the protection of individual buildings through Preservation Orders had been the only piece of legislative control relating specifically to the historic built environment. Under section 1 of the Civic Amenities Act 1967 local planning authorities were required to:
from time to time determine which parts of their area …are areas of special architectural or historic interest the character of appearance of which it is desirable to preserve or enhance, and shall designate such areas (hereafter referred to as conservation areas).
Initially local authorities had little difficulty identifying suitable areas and justifying their designation. In Westminster, for example, the Mayfair and Soho Conservation Areas were established in 1969 following the principles set out in the Act.
Nationally, the first four conservation areas were designated in 1967, with the number growing rapidly during the 1970s and 1980s so that English Heritage now estimates that there are around 7,000 conservation areas in existence. All local authorities have at least one conservation area, with one authority having designated as many as 84.
Current policy and practice
The current legislation on conservation areas appears in sections 69 to 75 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which requires local planning authorities to establish and review the designation of “areas of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance”.
Neither the Act nor DOE Circular 8/87, Historic Buildings and Conservation Areas — Policy and Procedure, specify detailed criteria to be adopted for designation, and it is therefore open to each individual authority to interpret this definition in its own way, providing for a wide range of policies to be formulated for the establishment and enhancement of conservation areas.
The designation process is suprisingly straightforward, constrained only by the broad principles of the Act. Once a local authority has identified an area, the character of which it considers to be of special architectural or historic interest, based on whatever criteria it chooses, it may then reference and map that area and place a notice in the London Gazette and a local paper. The only remaining step is to make the decision to designate. No prior consultation is needed, there is no right of appeal, and there is no need to organise any public forum or convene any public inquiry. In practice many authorities do undertake a measure of public consultation, but, effectively, the local planning authority is judge and jury of its own actions and, once designated, the conservation area can stay in existence indefinitely.
Once conservation areas have been established, however, the Act places a duty on local planning authorities to formulate and publish proposals for the preservation and enhancement of those areas and to have regard to the views expressed at a public meeting called for that purpose. Local authorities are also advised to consider the establishment of conservation area advisory committees which would assist in the formulation of policies for the area and comment on planning applications affecting it.
It should be noted that both the Act and circular acknowledge the principle of new development within conservation areas. Paragraph 61 of Circular 8/87 states:
Often the emphasis will be on control rather than prevention, to allow the area to remain alive and prosperous but at the same time to ensure that any new development accords with its special architectural and visual qualities. It will be important to see that every new building is designed not as a separate entity, but as part of a larger whole which has a well established character of its own.
It is therefore clear that conservation areas can embrace acceptable change and should not be regarded as preservation areas where any prospect of change ceased on the day of designation.
In order to inject a greater degree of democracy into the designation procedure, the Government proposed, in a consultation paper issued in September 1989, that designations, variations and cancellations of conservation areas should in future be considered only in the context of the development plan process.
The Government saw three main advantages accruing from the implementation of this proposal: first, it would provide a formal opportunity for the public to become involved in the designation and alteration process; second, it would ensure that the needs of conservation were fully addressed by a local planning authority when formulating policies for its area as a whole and; third, it would enable conservation area policies to be formulated as part of the authority’s overall planning strategy. It was proposed that this change would come into force at the same time as the proposals for mandatory district-wide development plans, which have since been incorporated in the Planning and Compensation Bill.
The DOE is reported to have received numerous responses on the proposals, the majority of which were hostile, expressing the view that it would be far too limiting on the authorities if the initial designation, or subsequent amendment, of a conservation area were restricted purely to the five- or 10-yearly cycle of development plans. The proposal has now been shelved.
Impact of recent case law
Since the leading case of Steinberg v Secretary of State for the Environment [8] 2 PLR 9 drew attention to the requirement, now found in section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, that local planning authorities and any other party exercising planning powers with respect to buildings or other land in a conservation area shall pay “special attention to the desirability of preserving or enhancing the character or appearance of that area”, there has been a number of cases all concerned with the true scope of this duty which forms the grey line between preservation and conservation.
The Court of Appeal in the latest case of South Lakeland District Council v Secretary of State for the Environment [1] 2 PLR 97 has added a further dimension to the debate by holding that the word “preserve” in this context should be given its ordinary English meaning, which according to the Oxford English Dictionary was “to keep safe from harm, etc”.
If a development does no harm to the character or appearance of a conservation area, then on this test it would preserve it and there would be no reason for an authority to withhold planning permission on the basis of section 72(1). South Lakeland has now moved on from the Court of Appeal to the House of Lords, whose determination will be awaited with considerable interest by those involved in the development and planning world.
There has been a tendency in some quarters to think that what Steinberg decided was that any development proposed in a conservation area had to preserve or enhance the area and that if it failed to do so it should be refused planning permission. If that were true, local planning authorities would be able to exercise a much tighter degree of control over developers than in other areas where there is a general presumption in favour of development. Why not, therefore, designate the whole of the district as a conservation area (a simple procedure as we have seen), and thereafter the Town Hall would once more be able to impose that close control over developers which had been whittled away over the past decade?
In our view, this would be an incorrect appreciation of the Steinberg decision, which held that while the decision-maker had to take special note of the question of preservation and enhancement — and make it clear that he or she had done so — provided that was done, the decision could go either for or against the development, taking into account all other material considerations. Adequate reasons would have to be given, however, if a development which neither enhanced nor preserved the conservation area was to be allowed.
None the less, the former perception still persists in some quarters and continues to influence decisions on planning applications for development within conservation areas, and the designation of the areas themselves.
Current designation practice
Interesting examples of the way in which the perception of conservation areas has changed are to be found in recently proposed or approved designations in the central London boroughs.
In July 1990 Westminster City Council proposed extensions to the existing boundaries of 17 conservation areas and the creation of seven new areas. The proposals included extensions to the Mayfair and Soho Conservation Areas, both of which were designated originally in 1969 and extended, respectively, in 1979 and 1984. The new extensions, which were approved by the council in November 1990, had all been considered previously when the original designations were made, but were excluded at that time because they did not match up to the statutory guidelines.
In justification of their inclusion now, it was stated in the report to the committee that these were “areas of generally mixed architectural quality in particularly conspicuous locations, where conservation area status will help to ensure that buildings of high standard of design will replace the exisiting on possible redevelopment”. In other words, the designations have nothing whatsoever to do with the merits of any buildings on the sites at present, but all to do with giving the planning authority greater control if the sites are redeveloped.
The new extension to the Soho Conservation Area includes an underground car park and examples of grim 1950s office buildings. The Mayfair extensions include a number of relatively modern large buildings on the Park Lane frontage, where a major concern was stated to be that insensitive redevelopment could spoil the views from Hyde Park and that new buildings should “positively preserve or enhance the Mayfair Conservation Area”. It is arguable whether the new extensions as they stand make a positive contribution to the objectives of the conservation areas in question and, indeed, in some cases may even debase the integrity of the original designation.
Public consultation was carried out prior to final approval, but no changes of any significance were made as a result of the representations received. A draft UDP for the borough was issued for consultation a few months after the conservation areas had been approved, from which it may reasonably be assumed that the two exercises were deliberately kept separate.
Revisions were similarly proposed by the Corporation of London at the beginning of this year to various conservation areas in the City of London. These were again introduced immediately prior to, and separate from, the issuing of a draft UDP for the City. Similarly, they incorporated proposals to extend existing conservation areas to include adjacent buildings which had little intrinsic architectural or historic merit, but which were to be included so as to ensure that redevelopment should result in “improvements”. In this instance the authority did modify the proposals in the light of representations received.
A year or two ago Kensington & Chelsea proposed the designation of the whole of the borough as a conservation area. It is understood that they were persuaded eventually not to do so on the grounds that the designation would be seriously devalued and likely to prove counter-productive. As Gilbert observed: “When everybody’s somebody, then no one’s anybody.” The fact that it was considered at all, however, suggests that there was seen to be some significant advantage to the authority either in planning or political terms, unrelated to the proper planning merits.
Conclusions
The criteria and procedure for the designation of new conservation areas and the extension of existing ones are only loosely governed by statute and Government advice. In our view, the system is open to abuse and indeed, is being abused.
Given the stricter planning controls that are increasingly seen to apply in conservation areas, which include the control of all demolition, it seems extraordinary that the designation remains not only outside the normal development plan process but is also subject to so few constraints. It is suggested that any designation should be either brought within the local plan process (although that itself is not above criticism since the authority is judge and jury in its own cause) or subject to a right of appeal to an independent adjudicator.
Will the Secretary of State and inspectors on appeal have regard to the basis on which a conservation area was set up, rather than simply taking the designation at its face value? It is to be hoped so.
It would assist all parties concerned, and perhaps impose a useful discipline on authorities, if all conservation area designations were required to include a brief description of the area and the essential character or appearance which formed the basis for the designation. This is normally provided by way of the report to the relevant council committee for new designations, but is sometimes not available for areas designated in the past. The essential character may change with time and may not be at all obvious, particularly where areas are widely drawn or have been extended such as in the Westminster examples.
Planning new development in a conservation area can be a particularly challenging and rewarding exercise. Outstanding results can be achieved, but this requires a sensitive and constructive attitude on both sides. Conservation areas ought not to be regarded as outdoor museums where the curator, in the form of the local authority, can dictate precisely what happens. The NIMBY conservative element, which would seek to use conservation areas as a means of resisting change, needs to be controlled and balanced by that which would welcome innovative design, flexibility and growth. The worthy aims of conservation areas must not be allowed to be hijacked for a lesser ideal.
