Article by John Sharland

February 2006


Listed Buildings and the Historic Environment
A Critique of the Governments Review of Heritage Policy

Introduction

A major review of the system for protection of the historic environment is currently taking place.
Several consultation papers and policy documents have already been published. A White Paper
on the whole issue is likely to be produced next year, followed by legislation in 2006/7. Following
this there is likely to be a revised planning policy statement covering the issues currently
addressed in PPGs 15 and 16. The main focus of most of these documents has been the best
means of protecting the built heritage and particularly the current system for the listing of
buildings. The purpose of this article is to consider the direction the review has taken so far and
suggest ways in which a bolder approach could be adopted.

The review began in February 2000 when Alan Howarth, then a Minister at the Department of
Culture, Media and Sport, announced its initiation. The first major contribution came from
English Heritage, who had been asked to lead a review of the policies relating to the historic
environment. The outcome of this was the discussion document Power of Place published in
November of that year. Although it did not consider the legislative regime for the listing of
buildings it produced a number of interesting recommendations for changes to the system.
These included imposing a duty of care on the owners of listed buildings and giving statutory
force to conservation plans and management agreements for individual listed buildings.
The next stage in the process was the major policy document The Historic Environment: A Force
for Our Future published by the DCMS and the DTLR in December 2001. There were a number
of action points arising from this, which related mainly to issues of leadership, education and
encouraging involvement. In November 2002 the Secretary of State for Culture, Media and Sport
announced a review to improve and refocus the statutory protection given to Englands historic
assets.

This resulted in the publication of a consultation paper Protecting our historic environment:
Making the system work better in J uly 2003. A great deal of thought had clearly been given
within DCMS and English Heritage as to the types of changes that could improve the system.
The consultation paper asked for responses on a number of specific questions and proposals.
The Governments response to the outcome of this consultation exercise is set out in the policy
paper Review of Heritage Protection: The Way Forward which was published in J uly 2004. This
set out the Governments plans for both short-term changes to the systems that relate to the
protection of the historic environment and long-term legislative changes to the statutory regime
which underpins such protection. Some of the steps envisaged in that document, such as the
transfer of responsibility for the administration of the listing process to English Heritage, have
already taken place.

The Government has now also begun a process of consultation on changes to PPG15. These
proposed changes are quite limited and relate only to the principles of selection for listing
buildings. The aim of these changes is to make the system more open and transparent and to
improve the standard of the criteria used. In addition the advice on procedure contained in
PPG15 is now out of date in view of the recent changes that have taken place, and needs to be
corrected. It is intended that, following the consultation period, the new principles of selection will
be issued in a circular.

Responsibility for listing

One of the most important reforms proposed as part of the new system is that English Heritage
should take over responsibility for designation of listed buildings from the Secretary of State for
Culture, Media and Sport. This will require primary legislation in anticipation of this change
English Heritage has taken over the administration of the current listed buildings system from
April 2005. The statutory responsibility for listing will be subject to a number of important
safeguards. These include a statutory right of appeal to the Secretary of State, and ability for the
Secretary of State to call-in decisions. English Heritage will have to work within a policy
framework set by the Secretary of State and provide an annual report.

The transfer of the decision on listing to English Heritage rather than the Secretary of State is
clearly a sensible move. It draws a clear distinction between the role of the case-by-case
decision-maker (English Heritage) and the policy maker (the Secretary of State). One of the
suggestions made in the consultation paper was the idea of having an independent committee to
vet applications. This did not find favour among the consultees and the Government has
rejected it as adding another tier of bureaucracy that would be both expensive and time-
consuming. Again, it is difficult to argue with the logic of this. However, the credibility of the
system will depend on the quality of decision-making. There does not need to be a formal
committee but access to the right advice will often be crucial. These decisions will need
to be able to withstand scrutiny and the system will have to be operated in an open and efficient
way that commands public confidence.

Grading and local listing

Currently listed buildings may be graded as I, II* or II. The Government view is that this is
outmoded and confusing, particularly the II* grade. They propose to replace the current system
of grading with a system that would simply divide buildings into Grade 1 or Grade 2. It is
anticipated that most, if not all, of the buildings currently listed as Grade II* would be listed as
Grade 1 under the new system. This may be a missed opportunity. The automatic promotion of
the Grade II* buildings could be seen as a dilution of the quality of the highest grade. When
looking at the highest grade of listed building, there is an expectation that this represents the
very best that the national heritage has to offer. Simply doubling the numbers of such
monuments overnight is not the best way of encouraging the view that these are pinnacles of
architectural or artistic achievement.

There is in fact a case for enlarging rather than reducing the numbers of categories. Apart from
the fact that the new Grade 1 will contain a larger number of lower quality structures than the old
Grade I, there is a massive variation in quality within Grade II. The vast bulk of Englands half a
million listed buildings fall into this category and they include some important buildings whose
retention would be regarded as a high priority by all but the most hardened philistine. On the
other hand there are also many Grade II listed buildings where the justification for listing would,
to put it kindly, not be obvious to those who lacked an expert appreciation of their merits. It might
be thought that this would lead to the idea of increasing the number of grades being at least
considered.

There was also a suggestion in the consultation paper that a number of Grade II listed buildings
could be migrated to local lists. This proposal proved extremely unpopular with consultees and
the Government is not intending to pursue it. This potentially looks like another missed
opportunity. The problem with the suggestion was that it was not accompanied by any proposal
to require local lists (at present only 44% of local authorities keep local lists) to be kept or to give
the buildings listed on them any form of statutory protection. In the context in which it was
proposed, it was really a proposal simply to de-list these buildings. There are in fact strong
arguments in favour of local listing and for such local lists to include some buildings that would
otherwise be listed as Grade II. As a matter of logic a building on a national list ought, at some
level, to be regarded as being of national importance. Many Grade II listed buildings make a
valuable contribution to their local environment but are of little relevance to the nations heritage.
Itwould therefore be sensible for their merits to be assessed and their preservation to be
considered in a local context.

However, for this to happen there needs to be some kind of statutory protection of locally listed
buildings even if this amounts to no more than their demolition being excluded from the General
Permitted Development Order. There would also need to be a requirement on local authorities to
keep such lists and assume responsibility for monitoring the protection of such buildings. It is to
be hoped that this suggestion, which is still under consideration, will be taken forward. Once
these lists command a degree of confidence then it may be a good idea to look afresh at the
notion that some of the existing Grade II buildings could more effectively be protected at a local
level.

The process of listing

There are also a number of proposals, largely welcome, for changes to the process of listing.
The expressions transparency and certainty recur like a mantra throughout the consultation
documents. It is correct that, once a building is listed, an owner may be in considerable doubt as
to what he is and is not allowed to do. This is not, as is said in the consultation document good
regulatory practice.

Under the Planning (Listed Buildings and Conservation Areas) Act 1990 s1(5) the listed building
includes:

(a) any object or structure fixed to the building;

(b) any object or structure within the curtilage of the building which, although not fixed to the
building, forms part of the land and has done so since before 1st J uly 1948

Under s7 authorisation is required for any works for the alteration or extension of an existing
building in any manner which would affect its character as a building of special architectural or
historic interest.

The 2003 consultation paper was critical of these provisions, stating:

It is often unclear whether objects or structures are included in the listing, curtilage can be
difficult to pin down and the local authority cannot settle the matter by issuing a certificate. (p13)
This statement does not acknowledge that there has been a reasonable amount of case law on
these provisions that has clarified their scope and effect. Nonetheless, the proposal to which
these criticisms give rise is a sensible one: to provide better information to owners. In the
consultation paper the suggestion was to have, for each item on the list:

a map showing exactly what area and structures are covered by the listing
a statement of significance setting out the reasons for listing, the significance of the asset and
listing the works for which consent would be required

This suggestion was refined when the response was published. In the 2004 paper the
Government indicate that they have decided that there should be a map for each designation
and that this should be accompanied by a summary of importance setting out the reasons for
listing. In addition English Heritage are to develop an information pack for owners explaining the
importance of the asset, further information and details of who they need to approach for more
information. Wisely, there is no mention of information about what objects are protected or what
works need consent. This would be very difficult to assess in detail at the time of designation
and would probably require an internal survey of each property, imposing an almost impossible
burden while still not avoiding the danger of misunderstandings. If it was considered that the
legislation was not clear enough then they obvious remedy would be to amend it, though it is
difficult to see how this could be done in a way that left no room for doubt. An alternative would
be to enable a local planning authority to provide a certificate, a suggestion that was alluded to
in the passage quoted above. A better solution is to provide high quality information to owners
and ensure that they have access to appropriate advice from their local authority.

There is one aspect of s1(5) which does warrant consideration and that is the requirement that,
in order to merit protection, an object needs to have been in the building since before 1st J uly
1948. A twenty-two year period was considered reasonable in 1970. There is a possibility that
what is now a fifty-seven year period is going to allow objects and structures, which form part of
some important post-war buildings to slip through the net.

Perhaps the most important changes to the process of listing which the Government has
decided to implement are the requirements to notify the owner and local authority prior to the
decision to list and the introduction of a right of appeal. This represents a transition from a semi-
secret the experts know best approach to a transparent and accountable system. The notion,
inherent in the existing system, that owners were not to be trusted, has been replaced by an
assumption that they should have an important voice in the decision and that their views need to
be taken into account. Similarly, the local authority will have important views which ought to be
heard. There will be a period of interim protection from the time of notification. This will lapse if
the decision is not to list the building. These proposals will require primary legislation to
implement them. In the meantime English Heritage are consulting with owners and local
planning authorities about all new listing decisions on a non-statutory basis.

The introduction of a right of appeal is a much-needed reform. A decision as to whether to list a
building can have important implications for its owner. Potentially its consequences could be
more far-reaching than the service of an enforcement notice. As the appeal is to the Secretary of
State it will presumably work in the same way as other planning appeals and could be dealt with
by way of written representations, an informal hearing or a public inquiry, depending on the
nature of the subject matter.



Regeneration and spot-listing

In both the consultation paper and its response the Government said it was keen to address the
problems which could be caused by spot-listing an asset shortly before a redevelopment is
about to begin on a site. They comment that although it may not be widespread the cases in
which it occurs tend to be high profile and can create disproportionate dissatisfaction with the
system. This is true, but those who have had to shelve major and much needed plans for
redevelopment at a late stage because of the sudden listing of a structure which has been seen
more as a local eyesore than a part of the nations heritage might not regard their dissatisfaction
as disproportionate.

The essential problem is that this type of listing is symptomatic of two things: first, a reactive
rather than a proactive approach to building conservation and second, an ability to see the wider
picture. The Government response to this was inadequate. It stated that it would ensure that
there is an overarching statutory definition of historic assets. (A good idea but not one that
addresses the problem under consideration.) It also put in hand a review of the criteria for listing
buildings. This is now subject to consultation and is discussed further below. However, this does
not deal with the issue either.

The Government also say that the ODPM are developing models to deal with the difficulty of
spot listing requiring additional consent and causing delay. It is not clear what these might be but
the way in which it is expressed indicates that the nature of the problem has not been fully
appreciated. Unexpected listing decisions can prevent redevelopment and regeneration taking
place, not simply cause delay. What is needed is an approach that recognises that the potential
value of a building that might be regarded as having aesthetic or historic merit is only one factor
that needs to be taken into account. The purist approach approved by the Government does not
accord with the reality of the type of decisions that developers and local authorities have to
make. The merits of preserving a particular building or structure need to be weighed against the
benefits of the redevelopment proposals under consideration.

A unified system and statutory management agreements

There are two aspects to the establishment of a unified system. One is unifying the existing
listing arrangements into a single list. The other is establishing a unified consent regime.
It is intended that there will no longer be separate lists of listed buildings, parks, gardens,
battlefields and scheduled monuments (as well as the much shorter list of World Heritage sites).
A single Register of Historic Sites and Buildings of England will replace these separate lists.
There will also be a local section including conservation areas and locally listed buildings. The
list will be compiled and administered by English Heritage. It is a good idea in principle to unify
the different protection regimes. However, there is a sense in which it is only a small step. By far
the largest category on the new list will be listed buildings.

The Government also intends to establish an integrated consent regime. This will unify listed
building consent and scheduled monument consent. This will be administered by local
authorities. The Government is looking into the possibility of unifying all the existing consent
regimes, including consent for planning permission and conservation area consent. In principle
this is a good idea.

There is no reason in principle why a single proposal in respect of an individual site should
require three separate consents, as is often the case in certain areas.

The Government sees the establishment of a unified consent regime as going hand in hand with
the greater use of management agreements. These would take the form of agreements about
what works could or needed to be carried out and arrangements for the future management of a
site. The existence of such an agreement would obviate the need for individual specific
consents.

A research report commissioned by ODPM and English Heritage into the use of management
agreements for listed buildings was published in J une 2003. It found that management
agreements could provide a helpful framework for streamlining listed building consent. Although
this would require amendments to the existing legislation, the Government has agreed that,
once the unified register and consent regime has been established, management agreements
could be used wherever they would work better than the system of specific consents. It indicates
that this approach is likely to work best for:

large scale buildings, sites and landscapes;

complex historic entities that comprise more than one type of asset;

assets that are better managed alongside other regimes (e.g. in the natural environment or in
the local planning framework);

assets of a similar type in single ownership but dispersed locations (e.g. historic bridges).

There is no reason in principle why such a system should not work well. There may be scope for
using it more imaginatively than the above list implies. It is not only large-scale and complex
types of site that could benefit from this type of arrangement. Why, for instance, should not an
individual occupier of a house or commercial premises seek to agree a simple form of
management agreement which will give certainty over his future plans for the property without
needing to worry about the potential complications which could arise from the need to apply for
individual consents?

Revisions to listing criteria

On 25 J uly 2005 the Department of Culture, Media and Sport and the Office of the Deputy Prime
Minister published a consultation document Revisions to Principles of Selection for Listing
Buildings: Planning Policy Guidance Note 15. A full-scale revision on PPG 15 and its integration
with PPG 16 will take place after new legislation is in place. However, the Government
considered that there was an immediate need to put in place clearer and more focused criteria
for listing a building. These are known as the Principles of Selection. The proposed revised
criteria are set out in a draft circular that forms Chapter 5 of the consultation document.

The Government says that it believes that the fundamental principles set out in the current
Principles of Selection are sound and is not proposing to change them radically. However, they
are very broad-brush, particularly when compared with the detailed criteria applied to
monuments, parks, gardens and battlefields. They do not take account of the work that has been
undertaken by English Heritage to identify the special characteristics of individual building types.
Thus the new Principles include a great deal of detail about the particular types of features
associated with different building types which would make individual buildings stand out as being
of special interest. This is both sensible and useful, though the level of detail included turns this
part of PPG 15 into a set of detailed guidelines rather than a policy document.

It is nonetheless disappointing that the Government and English Heritage have not taken this
opportunity of having a radical rethink of the Principles of Selection. There is no attempt to see
the process of listing as taking place in a wider context, such as the character of the surrounding
area. There is no indication that listing should be accompanied by any kind of thought about
what could or should be done to ensure that the building is in fact preserved. Indeed, it is seen
as a benefit that the decision as to whether a building should be listed takes place in isolation.
There is still a heavy emphasis on the age and historical associations of buildings. This is
indicative of a mindset that seems to find it impossible to think of listed buildings as anything
other than a kind of national museum. While there may be merit in this approach, there does not
appear to be any debate about whether an alternative approach would actually do more for the
preservation of the national heritage. The general principles setting out benchmark dates to the
effect that the older the building the more likely it is to be retained almost in its entirety. The rule
that buildings less than 30 years old are normally listed if they are of outstanding quality and
under threat has not been changed. The use of the words under threat is a further
encouragement to a reactive approach to listing. On the positive side, there is no longer an
absolute bar on more modern buildings being listed. The new rule is that buildings that are less
than ten years old are not listed except under the most exceptional circumstances.

Incentives to owners

There is reference in the 2003 consultation paper to the main incentive for owners to look after
their property and respect its special character being the impact on its value. This appears to be
a somewhat simplistic approach. Maintaining the special character of a listed building may or
may not be the best way of obtaining best value from the land that it occupies. The paper also
refers to the availability of grants for repair and improvement from various public and charitable
bodies and the reduction in VAT on alterations to the property. No particular comments were
sought and the subject has not been mentioned as forming any part of the Governments plans
for future action.

However, it is, in a sense, the most important subject of all. Unless there is a means of ensuring
that buildings which are deemed to be of national importance are maintained and kept in good
repair then it raises the question of whether the list should be much more selective than it is at
present. The present enforcement regime is clearly ineffective. The ultimate power of
compulsory purchase is rarely used. Yet the issue of enforcement has not formed any part of the
debate about the protection of the historic environment. There was an interesting proposal made
in Power of Place that a duty of care should be placed on the owners of listed buildings so that
there was a positive obligation to keep them in repair. It may be that this suggestion is
impracticable but it surely merited at least consideration by the Government as a topic worthy of
consultation.

Conclusion

The governments review of the current regime for the protection of the built historic environment
has resulted in a number of positive immediate steps and long-term plans which should result in
a more transparent and open regime as well as being more effective. Most of the proposals are
sensible administrative measures, such as the creation of a unified list and unified consent
regime as well as the transfer of responsibility for listing to English Heritage. Others, such as the
requirement for consultation, and the establishment of a right of appeal are simply establishing
conformity with elementary principles of justice.

On the whole though one may question whether the approach being taken is sufficiently radical.
Historic buildings, and for that matter modern buildings of exceptional aesthetic merit, do not
exist in splendid isolation. They are a part of a living, changing environment. The proposals for
reform of the current system need to acknowledge this to a greater extent than they have done
so far. There may, for instance, be circumstances in which a decision about whether to list a
building needs to weigh the wider plans for the area against the merits of preserving the
individual structure. More thought is needed as to how buildings will be protected. There is also
a need to acknowledge that any regime that imposes obligations needs to be backed up by
effective means of enforcement. This is an aspect of the regime which does not yet appear to
have been considered. It is to be hoped that when the long-awaited White Paper on the historic
environment is produced it will demonstrate that the Government is prepared to adopt a bold
approach encompassing changes which will provide effective protection for the nations heritage.