by Mark Williams
The “conservation area” designation was first introduced into the English planning system by the Civic Amenities Act 1967. The concept is generally accepted to be attractive: it can apply to a wide variety of environments based on the principle that if beauty is in the eye of the beholder then a view or setting can be just as appealing as an individual building of architectural merit.
DOE Circular 8/87 emphasises that conservation areas “may be large or small, from whole town centres to squares, terraces and smaller groups of buildings. They will often be centred on listed buildings, but not always. Pleasant groups of other buildings, open spaces, trees, an historic street pattern, a village green or features of historic or archaeological interest may also contribute to the special character of an area. Areas appropriate for designation as conservation areas will be found in almost every town and many villages. It is the character of areas rather than individual buildings” that conservation area designation seeks to preserve.
The statutory provisions
Section 277 of the Town and Country Planning Act 1971 imposes a duty on local planning authorities to determine periodically whether any part of their area is of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance: any such areas should be designated.
A residuary power is given to the Secretary of State for the Environment to designate conservation areas, provided that he has first consulted the local planning authority. Special provisions concerning the role of the Historic Buildings and Monuments Commission for England (English Heritage) apply in London. Furthermore, once an area is designated there is a requirement to give notice of such designation to the Secretary of State and English Heritage (and also of any variation or cancellation).
The designation process itself, although formal, is relatively simple to comply with. If the designation is to be made by the district planning authority, then once the appropriate resolution has been passed (designation being effective from the date of the resolution) all that is required is for notice giving particulars of the effect of the designation to be given to the Secretary of State, with an advertisement in a local newspaper and notice in the London Gazette. Once these formalities have been complied with, the designation is formally registered as a local land charge. A similar process applies for any subsequent variation or cancellation. It is worthwhile noting that the county planning authority also has power to designate a conservation area, although if it seeks to do so it must first consult the district planning authority. Details of the extent of the conservation area will normally be denoted by a plan and supplemented by explanatory literature explaining the effect of designation.
Once designation has taken place, then section 277(8) requires that special attention shall be paid to the desirability of preserving or enhancing the character or appearance of the area in the exercise, with respect to any buildings or other land in that area, of any powers under the Town and Country Planning Act, the Historic Buildings and Ancient Monuments Act 1953 or the Local Authorities (Historic Buildings) Act 1962.
Legal consequences
Designation has the following legal consequences.
(1) There is a requirement for separate conservation area consent for the demolition of certain buildings. Essentially, this requirement applies to all buildings other than listed buildings, ecclesiastical buildings and buildings included in the schedule of monuments compiled under the Ancient Monuments and Archaeological Areas Act 1979. The requirement for consent also does not apply to those buildings covered by the Secretary of State’s direction (see DOE Circular 8/87 para 97), which applies, inter alia, to buildings with a total cubic content not exceeding 115m3 and also to buildings subject to demolition or similar orders.
(2) Subject to certain specified exceptions set out, it becomes an offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy any tree in the conservation area, except with the consent of the local planning authority. A defence to prosecution does exist if it can be shown that prior notice of intention was served on the local planning authority and the act was done either with their consent or after the expiry of six weeks from the date of the notice and before the 31084694 49.-53.
(3) Section 277(B) imposes a duty on the local planning authority to formulate and publish proposals for the preservation and enhancement of the area. This is in addition to the requirement to pay special attention set out in section 277(8). Such proposals must be submitted for consideration to a public meeting in the area to which they relate and the local planning authority is required to have regard to any views concerning the proposals expressed by persons attending the meeting.
(4) Planning applications for development which would in the opinion of the local planning authority affect the character or appearance of the conservation area must be given publicity under section 28 and representations received in consequence of such publicity taken into account in determining the application.
Judicial interpretation
The effect and importance of designation has recently come to the fore as a result of the decision in December 1988 of the High Court in the case of Steinberg v Secretary of State for the Environment [9] 2 PLR 9. The case arose out of a decision by a planning inspector on an appeal for infill development in a conservation area. At the appeal a local amenity group and neighbours had submitted written representations setting out their strong opposition to the proposals. The issue that came before the court was whether the inspector in his decision letter had applied the correct test as set out in section 277(8) of paying special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. After due consideration of the terms of the decision letter, the court was of the opinion that the inspector had in fact applied a negative test in asking himself whether the development would harm the area, rather than the statutory positive test of whether the development proposals would actually preserve or enhance either the character or appearance of the area.
The decision generated considerable argument, perhaps surprisingly, bearing in mind the clear statutory requirement. Nevertheless, the effect of the case was to offer assistance to beleaguered planning departments faced with redevelopment proposals within conservation areas (particularly those in town centres where retail and commercial redevelopment proposals were being put forward). The decision placed an onus on the developer to justify his proposals rather than a requirement on the local planning authority to show why the proposals were not acceptable. This is in addition to the normal high design criteria tending to apply in conservation areas.
It also operated to reverse — in so far as conservation areas were concerned — the oftcited Government edict that planning permission should always be granted except where it would cause demonstrable harm to interests of acknowledged importance.
In effect, the existence of a statutory duty could not be overridden by mere ministerial pronouncement. Alternatively, both the statute and the Government’s policy were material considerations, but at the end of the day the statute was the greater consideration.
The High Court decision in Steinberg has more recently been reinforced by the Court of Appeal in the case of Ward v Secretary of State for the Environment and Others reported in The Times on October 5 1989. The facts in this case were that as a result of a planning appeal the inspector recommended the grant of outline planning permission for two houses to be built on land in a conservation area. The appeal site had been a private garden.
DOE Circular 8/87 had said that open spaces were capable of contributing to the special character of a conservation area. The inspector was of the opinion that this reference to open spaces did not embrace private gardens which were essentially open areas incidental to the enjoyment of dwelling-houses as such. The inference therefore was that as gardens were not open spaces they were not to be given special consideration in conservation areas. The court, however, found that the inspector had erred.
A private garden was capable of being an open space and something that should be taken into account in complying with the duty in section 277(8). The garden area could be part of the character or appearance of the conservation area that it would be desirable to preserve or enhance. The court went on to say that the inspector’s primary task was to compare what was presently on the appeal site with what would be on it if the planning permission were implemented. The inspector had indicated that the proposed development would make a positive contribution to the visual quality of the street and would be in keeping with the aim of enhancing the conservation area.
However, the inspector had not applied his mind to the question of whether what was on the site at the present time would be less or more beneficial to the conservation area than what was proposed by the planning application. Looking at the decision letter as a whole, it could be reasonably said that the inspector had misapplied the circular in failing to give proper weight to the loss of an open space.
Also, by failing properly to consider whether the proposed development on such a site would preserve or enhance the area, the inspector had fallen short of the statutory requirements imposed by section 277(8).
It is perhaps surprising that it has taken some 20 years since the idea of a conservation area was introduced for the courts to state emphatically the importance and effect of designating an area as a conservation area. Whether the courts’ pronouncements are to be welcomed remains to be seen, but the decisions are undoubtedly a source of comfort to those residents who are attracted to an area because of its designation as a conservation area. At the end of the day, however, an inspector’s finding of fact that particular development proposals will preserve or enhance the character or appearance of the particular conservation area will be unchallengeable in the courts, provided that the test has been properly applied.
This reinforces the subjective element of the statutory test and provides perhaps greater scope for argument.
Proposals for reform
The Government has recently published a consultation paper dealing with both listed buildings and conservation areas, setting out proposed legislative changes.
The paper emphasises the Government’s deep commitment to the promotion of understanding and enjoyment of the best of the country’s heritage and to seeing that it is preserved wherever practicable. In particular, the rich and valued heritage supports a strong and growing tourism industry which is to be encouraged.
With regard to the designation of conservation areas, the Government acknowledges that at present designation can be carried out with the minimum of formalities. Although the Government recognises that the existing arrangements have the advantage of speed, simplicity and flexibility, they do mean that in certain cases conservation area policies are determined without reference to wider planning policies for an area.
Within the context of the White Paper The Future of Development Plans and proposals for district-wide development plans contained therein, the Government sees an opportunity of integrating the designation of conservation areas with the plan-making and review process. The DOE therefore proposes that designation variations and cancellations of conservation areas should in future be considered only in the context of the development plan process.
This is seen to have several advantages, including providing a formal opportunity for public involvement when new conservation areas are considered and when changes to existing areas are proposed. It should also ensure that the needs of conservation are fully addressed by a local planning authority in the context of the planning of its area as a whole, and provide for the development and adoption of development control policies within the conservation area which form a coherent part of the authority’s overall planning policies.
While the Government considers that these proposals would merely formalise existing good practice recommended in Circular 8/87, it feels that they would also enable local authorities to bring forward positive proposals for preservation and enhancement of their conservation areas in the context of their development plans, in fulfilment of the statutory duty.
The Government therefore proposes that this change should come into force at the same time as the proposals for mandatory district development plans with the corollary that “as with the making of development plans generally, the power of designation, variation or cancellation of conservation areas will in future be confined to district-level authorities, rather than being a function which may be carried out concurrently by both district or county planning authorities as at present”.
Conclusion
If implemented, the implications of the consultation paper proposals could be considerable. Not only does it suggest a continuing commitment on the part of the Government to carry out the threat set out in the White Paper to abolish structure planning as it presently exists, but it also suggests that the designation of conservation areas will no longer be a simple process.
This is an important issue, because part of the attraction of designating a conservation area is the speed and simplicity with which it can be carried out, thereby providing some degree of protection to buildings where the service of a Buildings Preservation Notice (because of possible compensation implications) would not be applicable.
That being said, however, what is likely if the proposals are adopted is that incorporation into the local plan will provide an even stronger degree of planning protection for a conservation area, especially if the Government’s intention that development control should be plan-led (as set out in the White Paper) is carried through.
The message seems to be clear. If local planning authorities propose taking steps to designate conservation areas, they should do so at the earliest opportunity in order to avail themselves of the existing arrangements. On the developers’ side, if there are development proposals within conservation areas then they should be progressed at the earliest opportunity, as any delay in pursuing them could result in an even greater battle to secure approval and subsequent implementation.
