Once a building is listed under the Planning (Listed Buildings and Conservation Areas) Act 1990, no demolition, alteration or extension in any manner that would affect its character as a building of special architectural or historic interest is permitted without listed building consent. The extent of a building’s listing includes fixtures in the buildings and ancillary buildings and structures pre-1948 within the curtilage of the building. Development not on a heritage site, but affecting the setting of a listed building, may also not get planning consent without special consideration.
However, in the present economic climate, other factors have to be considered when deciding whether the proposed development of a listed building, or one affecting the setting of a listed building, should be permitted. The policy of enabling development may also allow changes to historic buildings that would otherwise be unacceptable in planning terms to prevent listed buildings falling into disrepair.
Sustainable development and the NPPF
The issue of mitigating climate change must be weighed against the conservation of heritage buildings, whether it is an issue of altering the listed building itself, or a development such as a wind farm that affects the setting of a listed building.
The National Planning Policy Framework (NPPF) issued in March 2012 states in section 6 that “the purpose of the planning system is to contribute to the achievement of sustainable development”. In section 9 it recognises that, in pursuing this aim, this will involve “positive improvements in the quality of”, among other things, the historic environment, which can include “replacing poor design with better design”. It therefore recognises the possibility that listed buildings may be modified to reduce carbon emissions. Of course, at times there may be a conflict between the competing desires of not harming the significance of a heritage asset and mitigating the affects of climate change. It would then be a case of demonstrating that the benefits outweigh any harm.
The case of Enertrag (UK) Ltd v Secretary of State for Communities and Local Government [2009] EWHC 679 (Admin) epitomises the conflict that can occur between the need to encourage renewable energy and at the same time preserve the setting of listed buildings. section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 states:
“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority shall have special regard to the desirability of preserving the building or its setting.”
In the Enertrag case there was an application to quash an inspector’s decision to refuse consent for the construction of six wind turbines as it would have had visual impact on some listed buildings. The inspector found it a “finely balanced case” but said the serious harm to the landscape and the listed buildings setting outweighed the benefit of sustainable energy.
Under section 133 of the NPPF it is made clear that, where an application will lead to substantial harm of an historical asset, consent should be refused unless “the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that harm or loss”.
In Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin), an appeal was lodged against the grant of planning permission for an 8,292m2 mixed-use site in London SE1. The site would have an impact on Somerset House and St James’s Park.
In deciding whether the planning permission should be quashed, the Secretary of State’s decision letter was considered. It stated that the effect on the setting of Somerset House was a significant factor. However, this had to be balanced against the benefits of the scheme to the local community. The scheme “would bring lasting wider social benefits, such as employment, and contribute to economic growth in this part of Lambeth”. She also gave significant weight to the housing benefits of the scheme: “It was decided that these factors outweighed the damage.” The decision was therefore not quashed, even though Somerset House is a Grade I extremely significant building.
Weighing up the issues
In the later case of R (on the application of Garner) v Elmbridge Borough Council [2011] EWHC 86 (Admin) again the advantages of a regeneration scheme against the damage to listed buildings were weighed up. Here the LPA granted planning permission for development on the opposite bank from extremely important buildings, including Hampton Court. An application for judicial review of the case was rejected. The case clarified the issue of how section 66 is used in coming to a decision when there are other important issues to weigh up. John Martin summarised the following principles from the judgement (see PP 2011/34 at auth.egi.rbi.web.internal):
“(1) The decision maker cannot treat the desirability of preserving the setting of a listed building as a mere material consideration to which it can attach whatever weight it sees fit.
(2) The language of section 66(1) goes beyond that and creates a presumption in favour of preserving the setting.
(3) If a development would harm the setting, it is necessary to demonstrate that its merits outweigh that harm.”
Therefore, although there is a presumption in retaining the setting, if the merits of the development outweigh the harm, permission may be granted.
The policy of enabling development can facilitate a proposed development. This was defined in PPS5 (now replaced by the NPPF) as:
“development that would be unacceptable in planning terms but for the fact that it would bring heritage benefits sufficient to justify it being carried out, and which could not otherwise be achieved”.
Section 133 of the NPPF recognises that consent harming the asset may be given if, among other factors, “no viable use can be found in the medium term that will enable its conservation” and in the same section: “the harm or loss to the heritage asset is outweighed by the benefits of bringing the site back into use.”
Buildings at risk
When values of real estate are at a low level, and risks of deterioration to listed buildings are therefore great through lack of demand, the frequency of enabling development is likely to increase. Although there is a guidance document published by English Heritage, there is always the risk of it being used too readily, resulting in extensive alterations as a compromise to the property deteriorating even further. This is a difficult judgment on behalf of the local planning authority.
English Heritage recognises “that listing a building isn’t about fossilising the same”. It is recognised that changing, for example, the use of a building, with the adaptations that this can necessitate, can bring new life into an unwanted property. A disused church or railway station can be saved from deteriorating further by altering the use of the building to an office.
English Heritage reveals on its website, with reference to its listed buildings at risk register, that:
“After an alarming reversal in the trend in 2008, when more buildings were added to the register than removed, the situation has stabilised and 2011 has seen an encouraging increase in the number of buildings removed While figures for 2011 are encouraging, with a 3.3% reduction in the number of buildings on the list, the current economic climate remains challenging. The list increasingly comprises long-term buildings at risk and non-beneficial structures.”
The fact that the number of buildings on the register is not increasing rapidly in the present property climate may be in part due to the policy of enabling development. Boris Johnson’s initiative in London in bringing back listed buildings at risk into residential use will also have had some effect, with a large amount of investment being given to facilitate this. The counter argument to enabling development is that it may, for short-term gains, compromise the integrity of the building forever.
Monica Dawson is senior lecturer in law at Sheffield Hallam University
Why this matters
There is an inherent tension between conservation and the need for new development. Recent guidance and case law makes it clear that, in the present economic climate, the need for new housing, employment and economic growth are considerations which have to be weighed against the impact of a new development on listed buildings. Energy conservation and the need for renewable energy are also factors. The lack of interest in a deteriorating disused listed building may lead to enabling development.
However, breaching listed building law remains a serious offence. Developers should never assume consent will be given.
Pre-application meetings with the planning officer and obtaining a heritage impact assessment are advisable. A pre-application investigation is also needed: developers are required to record the “significance of any heritage assets to be lost (wholly or in part)” (NPPF section 141) in a manner proportionate to its impact. This has to be accessible to the public at large.
The more importance attached to the listed building, the greater the weighting that will have to be demonstrated of other factors, such as the provision of affordable housing and the creation of employment by the development. Also, any energy efficiency changes to a listed building must be weighed against harm that may be delivered to the property.
The penalties for carrying out any changes that affect its character without permission are severe. It is a criminal offence of strict liability; lack of knowledge by the developer of the building’s status is no defence. Also, the fact that the developer is not the legal owner of the site is not relevant to his liability if he facilitates the alterations.
English Heritage has increased the guidance literature on what alterations are likely to be permitted on certain categories of buildings and these are a useful stating point. Finally, the new Heritage Gateway website enables the public to search for details of a building’s listing and they can easily be galvanized into preventing development.
Further reading
National Planning Policy Framework
History lessons in planning applications: Robert Hill, Estates Gazette, 11 April 2009