Greater certainty ahead for owners of listed buildingsPrint publication
The Act has made various amendments to the Planning (Listed Building and Conservation Areas) Act 1990, with the effect of introducing the new concepts of:
- listed buildings (LB) heritage partnership agreements (HPAs);
- LB consent orders;
- local LB consent orders; and
- certificates of lawfulness of proposed works (CLPW) to listed buildings LB.
The legislation has come into force in a piecemeal fashion, with the recently-introduced Planning (Listed Buildings and Conservation Areas) (Heritage Partnership Agreements) Regulations 2014 now providing a clear procedure to be followed in the making of HPAs. So what is an HPA? What does it mean in practice? And what purpose does a CLPW serve in light of this?
HPAs involve a relevant local planning authority making an agreement with the owner of a LB (or part thereof) so that LB consent for the carrying out of specified works to alter or extend the building are already granted, provided any conditions attached to the consent are complied with. While an HPA cannot grant consent for demolition of a listed building, it can also:
- describe and outline works that would or would not be seen to affect the LB’s character;
- provide for the building’s preservation, maintenance and carrying out of specified work on it;
- make suitable arrangements for public access and provision of accompanying facilities;
restrict use of or access to the LB;
- prevent certain specified actions being undertaken in relation to the building; and
- ensure the Secretary of State, English Heritage or the local authority make agreed payments towards the cost of any works required or as consideration for obligations and/or restrictions faced by a party to the HPA.
An HPA must follow a particular format. So the Agreement should:
- be in writing;
- specify intervals at which the parties will review the HPA’s terms;
- include termination and variation provisions, depending on what the parties decide; and
- may relate to more than one LB.
The local planning authority are likely to take responsibility for an HPA in most situations, but they can incorporate a number of other entities into the HPA besides the owner (that is, the freeholder or a tenant with no less than seven years remaining) – be this English Heritage, any person with an interest in the building, the occupier, the manager, or a party with appropriate specialist knowledge. The preparatory measures required are relatively extensive. For instance, the local planning authority must prepare a statement of reasons detailing the likely effect of the proposed works, providing a reasoned justification for them, and detailing any conditions it feels may be appropriate. In addition, the authority should consult with English Heritage in advance where certain properties are involved; publicise and make all relevant documents available for public inspection; and notify and provide a copy to English Heritage when the HPA is finally made.
It is important to note that, as well as not being able to grant consent for demolition, the specified works will still need any other relevant permission – such as planning permission. Nonetheless, an HPA will mean owners no longer need to make repeated applications for LB consent where they wish to undertake certain alterations in accordance with the specified conditions.
HPAs come alongside introduction of the new concept of local LB consent orders, by which a local authority can prepare an order (subject to compliance with all the appropriate procedures) so alterations or extensions are permitted where they are to specific types of LBs or LBs in a specific area. Both measures are designed to simplify and speed up the process of obtaining LB consent, as part of the Government’s ongoing attempts to remove unnecessary administrative burdens and minimise planning ‘red tape’. Owners and developers of LBs will in turn enjoy greater certainty with the introduction of CLPWs. Since 6 April 2014, it has become possible to make an application to the local planning authority to establish whether a proposed alteration or extension to a LB requires LB consent or not. Once satisfied that the proposed works do not affect the property’s character as a building of special architectural or historic interest, the authority can issue a CLPW. The onus here is on the applicant to ensure submission of a valid application, with all the required plans, drawings and statements. However, where a CLPW is refused or the authority fails to determine the application within the six-week timeframe following receipt, a right of appeal exists. This parallels the right existing under the Town and Country Planning Act 1990 in relation to certificates of lawful use or development.
Alongside the usual online information existing as part of the National Planning Practice Guidance, English Heritage has recently issued an advice note on drawing-up HPAs. In turn, it aims to publish example agreements by April 2015 as part of its ‘Constructive Conservation’ series. For more information and advice on the best approach to adopt as the owner or developer of a LB, contact the Planning and Environment team at Walker Morris.