DCMS consultation
Improving Listed Building
Consent
August 2012
A submission from The Heritage Alliance
About The Heritage Alliance

The Heritage Alliance is the largest coalition of heritage interests in England.
Together its members own, manage and care for the vast majority of England’s
historic environment. Established in 2002 as Heritage Link, the Alliance aims to
promote the central role of the non-Government movement in the heritage sector

The Heritage Alliance represents nearly 90 Members - major national and regional
non-Government organisations, from larger bodies such as the National Trust, to
many smaller organisations such as the Association of Building Preservation Trusts
– which are in turn supported by over five million members, thousands of local
groups and over 450,000 volunteers

Alliance Members range from specialist advisers, practitioners and managers,
volunteers and owners, to national funding bodies and organisations leading
regeneration and access projects. Their specialist knowledge and expertise across
a huge range of issues – including planning, regeneration and place-making - is a
highly valuable national resource, much of which is contributed on a voluntary basis
for public benefit

This submission has been prepared following consultation with Alliance Members
through the Spatial Planning Advocacy Group.
A note on the timeframe for this response
1. The Alliance and its members feel most strongly that insufficient time has been given
for this consultation. One month is an extremely short period of time in which to coordinate the responses of third sector and voluntary
organisations, many of whom meet monthly or quarterly,
and may not have an August meeting because of the holiday
break. A consultation period over the summer break, which
includes the Olympic Games, should be longer not shorter,
because potential respondents are on holiday and/or their
decision-making bodies do not meet in August.
2. The Cabinet Office guidelines state that “timeframes for consultation should be
proportionate and realistic to allow stakeholders sufficient time to provide a considered
response. The amount of time required will depend on the nature and impact of the
proposal (for example, the diversity of interested parties or the complexity of the issue,
or even external events), and might typically vary between two and 12 weeks.” The
issues that are raised here would have major impacts on the historic environment, and
as such The Alliance feels it is wholly inappropriate to propose a consultation period
which is at the shorter end of the range available.
3. For umbrella bodies such as the Alliance and several of its membership
organisations, the value of our extensive networks in bringing informed comment into
national policy making is compromised by this minimal consultation period. Our
networks provide a huge resource of knowledge and expertise that help ensure
government proposals are workable in practice. We strongly regret this change in
consultation practice. We have endeavoured to consult our members as widely as
possible in the limited consultation timeframe by (1) asking for their views and (2)
seeking their comments on a draft of this response.
Summary of the Alliance’s response
4. The key test for all these proposals must be that protection of the historic
environment is not lessened or diminished.
5. The Alliance sees the main risk to this in the use of accredited agents in the consent
process. The alternative, which proposes that accredited agents should be permitted in
effect, to grant listed building consent, is wholly unacceptable as it circumvents all the
checks and balances of the current system. The proposal by which accredited agents
prepare a report for a planning committee which will have the standing of an officer
report can only work if the standard of the report and the independence of the agent
can be assured. How many agents will be willing to prepare a negative report on their
clients’ proposals?
6. The success of Option 4 will rely on the robustness of the accreditation systems,
which are developed to promote both good standards and to ensure the independence
of agents.
The proposals
Option 1: Deemed consent
7. There is a substantial degree of overlap between these proposals and those for the
certificate of lawful works of Option 3. If introduced, such a system should only be used
for works which do not adversely affect the special interest of a listed building, which in
many cases would not require LBC. Any proposals that do affect the special interest,
should be subject to processes that require public and other statutory consultation, and
the democratic decision of the local authority.
8. In any case, 28 days is too short a period for a local authority to respond, with
reduced capacity and resources in most cases, and allowing for staff to take leave.
9. The information requirements will need to be sufficient for the local authority to be
able to come to a satisfactory evidence-based decision. If the information provided is
inadequate, the local authority may determine that a full LBC application has to be
made. This would mean that there is an increase in regulatory burden, rather than a
reduction, which is not the intention of these proposals.
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Question 1: Do you agree with the proposal to introduce a system of prior
notification of works to a listed building, leading to deemed Listed Building
Consent if the Local Planning Authority does not request a full application within
28 days? If not, please clearly state your reasons and your views on the
approach you consider the Government should take.
We do not agree with this proposal, as prior notification leading to
deemed consent circumvents the requirement for consultation. If it is to
be used with a low category of cases where the special interest of a
building is not affected, such cases will be included in the proposals for
certificates of lawful use in Option 3. The Alliance would not support the
use of deemed consents for categories of work which affect the special
interest of the building.
Question 2: If you are commenting from a Local Planning Authority, are you
able to comment on the proportion of your LBC applications which require
amendment or the application of non-standard conditions prior to consent? If
you are able to supply supporting information, please set it out clearly, or
indicate where it can easily be accessed.
N/A.
Option 2: Class consents
10. Class consents can offer a valuable means of reducing the burden of regulation,
although there is a risk that they will be resource-intensive for local authorities to
designate..
11. The Alliance believes class consents are more appropriate for use at a local level,
where local authorities can determine classes of historic assets that are appropriate.
Question 3: Do you agree with the proposal to introduce a voluntary system of
local and national class consents? If not, please clearly state your reasons and
your views on the approach you consider the Government should take.
A voluntary system of local class consents may be a valuable tool for
local authorities, on the assumption that they will not be implemented
without full consultation.
There will be some overlap with the proposals for heritage partnership
agreements (HPAs), which are already in the ERR Bill. HPAs require
agreement with owners of buildings, which could be difficult to achieve in,
for example, rows of listed terraced houses which are all individually
owned.
The argument for national class consents is not as persuasive, as it could
be seen to be undermining local decision making.
Question 4: If you are commenting from a Local Planning Authority, are you
able to comment on the likely applicability of this option within your area, in
terms of the kinds of listed building and type of works to which it might be
applied, and to the likely resource implications of setting up a local class
consent? If you are able to supply supporting information, please set it out
clearly, or indicate where it can easily be accessed.
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N/A.
Question 5: Which of the options set out in this consultation to reduce the
number of LBC applications for works with limited or justifiable harm to special
interest (Options 1 and 2) do you prefer? Please state the reasons for your
preference.
Option 2 is preferred, subject to the comments we have made above. Our
reasons are as follows:
1. Option 1 provides for no consultation on the proposals
2. Option 1 could in some degree be covered by the Option 3
proposals.
Option 3: Certificates of Lawful works
12. These appear to be helpful additions, and will incorporate an element of the cases
that might have come forward for deemed consent approval under Option 1.
13. There has been a growing tendency of local authorities to ask for LBC applications
in all cases of works to listed buildings, as there is often no conservation expertise
capable of advising owners of listed buildings on whether an application is necessary.
This certification process may provide a solution to this issue.
Question 6: Do you agree with the proposal to introduce;
a) a Certificate of Lawful Works to Listed Buildings for proposed works;
Yes, it is a process which should assists owners and developers, but the
information requirements will need to strike a balance between being
adequate for the task, but not as burdensome as a full LBC application.
b) a Certificate of Lawful Works to Listed Buildings for works already
undertaken?
Yes, but not to the extent that it might be seen as an alternative to the
consent process in some cases. This will be a useful procedure for
owners of properties who are selling and require certification that
works carried out – perhaps by previous owners – are lawful.
Question 7: If you are involved in the Listed Building Consent system either in a
Local Planning Authority or any other capacity, can you provide further
information on the following;
a) possible numbers of LBC applications currently made due to the lack of
a formal mechanism for LPAs to confirm whether or not consent is
needed;
b) the numbers of informal requests received or made every year
concerning the need for LBC;
c) how such queries are handled?
N/A.
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Option 4: accredited agents
14. This is arguably the most contentious of the proposals in the consultation, because
it could be perceived as diminishing the power and role of the local planning authority
in the decision making process.
15. The driver behind this option is the reduction of conservation capacity in many local
authorities. This proposal should not be seen as a green light by local authorities to
make further reductions. It would also be most unfortunate if applicants were obliged to
commission an accredited agent, as this could add to the costs and burden of
compliance for smaller owners.
16. The system can only work adequately if the role of accredited agents is restricted to
providing advice. The Alliance regards the role proposed in Question 11 of accredited
agents being able to certify LBC directly as unacceptable.
17. This proposal can only work satisfactorily if the accreditation standards are
rigorous, including proper training and monitoring. The independent and unbiased
judgement of the accredited agent must be assured.
Question 8: Do you agree with the proposal to introduce a system whereby
accredited independent agents provide expert reports on LBC applications
directly to the LPA? If you are involved in the Listed Building Consent system
either in a Local Planning Authority or any the capacity of an independent
consultant, we will be particularly interested in your views on the likely take-up
of this option. If you do not agree with it, please clearly state your reasons and
your views on the approach you consider the Government should take.
Yes, but subject to strong safeguards for local democracy and the
standards and independence of the accredited agents.
The system should encourage the accredited agents to discuss schemes
with the local authority planning and conservation staff as the schemes
are developed, to avoid potential confrontation at a later stage as the
proposal goes for decision.
The professional liabilities of the accredited agent need to be considered,
as there will be legal impacts in where the duty of care lies, and the
position of the agent in any legal proceedings, including planning
appeals.
Question 9: If you are commenting from a one of the professional institutes
listed, are you able to comment on the likely impact on your institute of
establishing, monitoring and administering such an accreditation system to
support this option? If you are able to supply supporting information, please set
it out clearly, or indicate where it can easily be accessed.
N/A.
Question 10: How should the existing heritage accreditation scheme be
modified or replaced to accommodate this proposal? What professional
standards and enforcement would be needed to cope with the potential conflict
of interest, and should agents’ scope be constrained through national
government?
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The existing conservation accreditation schemes operated by the
architectural, archaeological, surveying and engineering professionals
are designed to accredit suitable professionals for running conservation
contracts. These new proposals require a different skill set, and different
accreditation schemes will be required. However, the existing schemes
have the processes and procedures in place for running conservation
accreditation, so it is possible that they may in interested in operating a
new scheme. Other professional bodies with planning and conservation
skills may also be interested in operating schemes for their members.
Professional standards will need to be of the highest order. This may be
achieved by English Heritage having oversight of the schemes in the
same way as they (and the other national heritage bodies in other parts of
the UK) have for the existing conservation accreditation schemes.
Scheme members should be subject to regular re-accreditation.
Question 11: Should the proposal for advice be extended further, as some
stakeholders have suggested, for example allowing accredited agents to certify
LBC directly themselves?
No, this is unacceptable.
Reform of enforcement powers for buildings at risk
Question 12: If you are commenting from an authority which is able to take
action under Enforcement and Compulsory Purchase powers, can you give any
examples of where you have done so, or can you comment on the reasons why
you have chosen not to?
N/A.
Question 13: Do you consider that amending the legal powers relating to
Urgent Works Notices, Repairs Notices and Compulsory Purchase could be
effective in encouraging authorities to pursue cases of neglect to listed
buildings? If so, please clearly state your reasons.
The current statutory time limits give authorities a limited time to secure
procurement and funding arrangements. The time needed to remove
Buildings at Risk from registers is long given the complexity of the
process. Extensions to time limits are therefore essential to allow back-toback agreements to be negotiated and implemented.
There is an argument for having a process between an urgent works
notice and a repairs notice. The only action that can be taken if an owner
fails to respond to a repairs notice is compulsory purchase, which is too
drastic, and many local authorities are understandably unwilling to
commit public funds. A procedure to take all necessary action to prevent
further deterioration would be useful.
Question 14: Can you propose any further changes or amendments, including
non-statutory changes, beyond those suggested here, which would provide
additional benefits or improvements to protect Buildings at Risk?
The fear of having to pay compensation is a stumbling block for most
local planning authorities – any system that can facilitate back-to-back
agreements, provide external funding or guarantees for local planning
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authorities would be welcome. A national fund to assist with compulsory
purchase orders and repair notices would help remove some of these
concerns.
Other proposals
Shimizu
The opportunity for legislation on historic environment matters comes infrequently. The
government has accepted that the situation with regard to part demolition of buildings
in conservation areas following the House of Lords decision in Shimizu (UK) Ltd v
Westminster City Council (1997) requires remedying.
This is an excellent opportunity to introduce appropriate measures to provide
the protection against demolitions in conservation areas, as was originally
intended by the legislation.
The Heritage Alliance
August 2012
This response was prepared by the Chairman of The Heritage Alliance’s Spatial
Planning Advocacy Group (SPAG), Henry Russell, in consultation with SPAG
members.
Contact: Emma Robinson, Policy and Communications Officer:
[email protected] / 0207 2330 500
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