How to reform listed building consent
There can be few laws in England that are so widely ignored and abused as the Planning (Listed Buildings and Conservation Areas) Act 1990, section 7, relating to receiving listed building consent for works which affect the character of a listed building.
Quantifying this abuse is all but impossible: every time one sees something that perhaps should not have happened, the question remains: did it somehow get consent? And how would one find out whether it did or didn’t? Consulting local planning authority records would be impossibly time consuming and would not necessarily lead to a satisfactory answer. And often changes are just not visible, because the fabric (especially an internal wall or feature) has disappeared.
- Ignorance. Owners of listed buildings – and sometimes their professional advisors – are simply not aware of what is affected by listed building regulation. And in most cases there is no effective monitoring or controlling mechanism that will allow the local planning authority to become aware of what is happening.
- Deliberate disregard by professionals. If a builder chooses to carry out works that affect a listed building, particularly anything internal or anything not that visible to the public, who is going to stop them? Once gone, any historic fabric can never be effectively replaced, even if it were known what was there before.
- Deliberate disregard by private owners. This may be because they have had a poor service from the local planning authority previously and are unwilling to go through such a process again, with the consequent expense and time delays that may be involved. They might cite similar works done by neighbours who did not apply for consent and got away with it. It does not help that there is often such a lack of consistency between how the law is applied from one authority to another, and even within the same authority.
In many cases no one really knows whether listed building consent is needed or not. The official advice is to consult the local planning authority. While this opinion will be authoritative, it will not necessarily provide the correct advice. It will come from a council officer who may not have professional accreditation or indeed much conservation experience. They are likely to apply the precautionary principle and ask for listed building consent as that is, for them, a safe and easy thing to do. However, this approach comes with all the problems that have led to the abuse of the current system.
Here are some ideas about how to bring the level of abuse down:
- Every time a listed building is sold, a note could be sent to the new owners pointing out their responsibilities. This would go at least some way to resolving the ignorance problem and may make the professionals more wary, as they could be challenged by the owners.
- Historic England or the Institute of Historic Building Conservation (IHBC) could produce an authoritative case list of examples setting out where works need listed building consent and where they do not. In these circumstances, the local planning authority officer would still decide on a case-by-case basis, but they would be able to draw on a range of examples and assess the position in the light of these. It might mean a more pragmatic and helpful response based on whether the character of the building as a listed building was affected – the only criterion that should be applied. It would help minimise the inconsistency that is regarded as being such a major problem, and which probably leads to some of the abuse referred to above.
- Another possibility is to get IHBC members to decide, before the case goes to a local planning authority, whether listed building consent is needed. If it is not, everyone wins – the owner who will save potentially large amounts of time and money, and the local planning authority which will not have to deal with an unnecessary application. If the IHBC member decides that listed building consent is required, again the applicant saves time and money, and the local planning authority will have a clean application, properly supported by all the necessary technical reports.
IHBC members are well qualified to carry out this role. They have professional accreditation and wide-ranging experience. They are bound by their Code of Conduct and are subject to disciplinary procedures if they fail to adhere to this code. For all these reasons, a more correct response may well be obtained from an IHBC member. It would speed up the process and allow council officers to get on with more important matters.
This is a fairly radical idea which will no doubt cause raised eyebrows among council officers, but not, I hope, because they automatically distrust the judgment of people working in the private sector. It would lighten their workload by not having to look at a project twice – at pre-application and (if listed building consent is needed) application stages.
IHBC members in the private sector may be reluctant to take on this role: it is possible (although remotely) that their view would be challenged. I would hope that such challenges would be vanishingly rare. Even if it were to happen, all IHBC members have professional indemnity. So long as they act in good faith, they would not be financially liable for their advice on whether listed building consent were needed, even if it differed from that of the council officer. Even on matters where there may be some grey areas, would a council officer challenge the view of an IHBC member? It would be a colossal waste of time and resources to do this when the result could not, by definition, be clear.
My paid time in the conservation world has all but finished. I have been aware of this latent problem for many years without it being effectively addressed. I have been the chair of the membership and ethics committee for a five-year spell and remain an assessor. In this time I have been hugely impressed by the talents of IHBC members. These talents could be brought to bear on a problem which is adversely affecting the historic environment.
This article originally appeared as ‘How to reform the practice of listed building consent’ in IHBC’s Context 156, published in September 2018. It was written by Paul Butler, consultant to Paul Butler Associates.
- Country Land and Business Association (2011) Averting Crisis in Heritage: report on reforming a crumbling system.
- Listed Property Owners’ Club (2018) Listed Heritage, issue 119.
Related articles on Designing Buildings Wiki
- Are works to listed buildings demolition or alteration?
- Building Preservation Notice.
- Cautions or formal warnings in relation to potential listed building offences in England and Wales.
- Certificate of immunity.
- Certificate of Lawfulness of Proposed Works.
- Charging for Listed Building Consent pre-application advice.
- Compulsory purchase orders for listed buildings.
- Conservation officer.
- Forced entry to listed buildings.
- IHBC articles.
- Listed Building Consent Order.
- Planning (Listed Buildings and Conservation Areas) Act.
- Planning authority duty to provide specialist conservation advice.
- The history of listed buildings.
- The Institute of Historic Building Conservation.
- Use of direct action in heritage enforcement cases in England.
- What approvals are needed before construction begins.
How the current pandemic will shape historic urban areas and their surrounding communities across the globe is impossible to tell. Join us to reflect on the implications for our current approaches to caring for valued places, and even speculate on future strategies and responses.
The Heritage Fund has put together a list of heritage-inspired activities to be done from home.
Spring is a good time to stand back and consider any building repairs that are required over the next 12 months, notes the LPOC, and regular inspection and maintenance is the key to keeping homes in good repair, as per its accessible step-by-step guidance.
Derbyshire Fire and Rescue Service said “rapid and effective firefighting” had saved three quarters of the mill – which is now apartments.
Police have appealed for witnesses after thieves stole lead from the roof of All Saints Church in Halsham near Hedon during the coronavirus lockdown.
The regular newsletter showcases the IHBC’s own Continuing Professional Development (CPD) content as well as online opportunities from ‘IHBC Recognised CPD Providers’ and other conservation related training and events.
To make sure the public still has access to twelve of those famous works, #WrightVirtualVisits has been launched, which offers virtual tours of 12 iconic houses.
The Construction Industry Council’s (CIC’s) ‘CIC Coronavirus Digest – Issue 8’ surveys the latest government advice with updates from the construction industry.
Organisations with conservation links have been collating resources on COVID-19 impacts, including Built Environment Forum Scotland (BEFS), Historic Environment Forum, The Heritage Alliance (THA), and Historic England, on cleaning surfaces.
Councils are reported to be considering taking up rarely-used executive powers to keep the planning and development system moving during the coronavirus pandemic.
Historic England's 'After a Flood' provides timely advice on how to dry walls properly and avoid further damage to the building fabric.
Context Issue 162 offers a peek into an archive of timber conservation history through the records of the practice of FWB and Mary Charles Chartered Architects.
To meet the government’s target of being carbon neutral by 2050, we must recycle, reuse and responsibly adapt our existing historic buildings, according to this year’s Heritage Counts report, so Historic England and partners are calling for a reduction in VAT rates to incentivise this more sustainable option.