The Law Commission has been asked by the Welsh Government to examine the operation of the planning system in Wales. Primarily, for the CBA, they are considering the merging of Listed Building Consent (LBC) with Planning Permission (PP). If you share our concerns, as outlined below, we need your support to respond to the consultation. All responses count!
What is the proposal?
While the system in Wales is similar to that in England there are some differences, mostly consolidated by the recent Historic Environment (Wales) Act 2016. The current proposals are based on the premise that simplification, consolidation and modernisation of the system is required.
The basis of the proposals would be to merge LBC with PP, by way of extending the definition of development to cover all works currently requiring LBC. This would mean that works which affect the ‘special interest’ or ‘character’ of a listed building but which aren’t development (such as the removal of an historic staircase) which currently require an LBC application but not planning permission would in the future be classed as development and therefore require PP.
We welcome the stated intention to maintain the National Amenity Societies role as statutory consultees in the proposed reformed system. However, CBA Wales foresees unintended consequences of these proposals, which include:
Loss of special status of Listed Buildings
The objective of PP is to ‘encourage sustainable development’ whilst LBC’s objective is ‘about managing change to retain significance’. The separate process for LBC signifies to the applicant and decision-maker that they are dealing with something sensitive and valuable and that all due consideration should be given to preserving the special interest and character of the building. To have a single regime for the construction of a utilitarian industrial shed and the demolition of a listed building is to downgrade the significance of the latter. We are concerned that consideration for preserving the historic environment would become a secondary issue to general planning considerations, particularly to the overarching presumption in favour of sustainable development outlined in Planning Policy Wales. This presumption is often at odds with the current requirement for decision makers to have ‘special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses’. There could be no guarantee that there would not be a dilution of heritage protection.
Impact on local authority expertise
If these proposals were enacted, we are concerned that there would be further loss of local authority conservation and archaeology specialists as conservation is side-lined and applications decided by planners with little or no experience or expertise in building conservation. The current trend of reducing specialist staff and making savings through staff reduction makes this a very real possibility. The consultation notes this concern but suggests it should be a matter for guidance and influence from professional bodies. These are both currently in place but make little difference when local authorities are faced with making considerable savings due to vastly reduced incomes.
There would therefore be a serious risk that consideration for preserving the historic environment is not given the ‘considerable weight’ or ‘special regard’ that is required in decision making, simply through lack of specialist knowledge and expertise. This would lead to a side-lining of heritage concerns, a reduction in the quality of decision making and would not fulfill the legal requirements for the protection of our heritage assets.
The assimilation of LBC into PP would mean that a planning fee would be required for a process which is currently free. There is a long standing argument that to introduce a charge for non-developmental works to a listed building would increase the likelihood of unauthorised works taking place. Lost historic features cannot simply be reinstated through taking enforcement action, once they are gone they are gone.
Permitted Development Rights
Ordinary householders currently have a number of ‘permitted development rights’ which allow them to undertake minor works without the need for PP. This does not apply to listed buildings. Whilst these rights would not extend to listed buildings in the proposal, it is inevitable that owners of listed buildings would undertake potentially damaging minor works, as their neighbours have legally done, simply through a misunderstanding of the differences between the status of their properties. In addition, it is currently the case that details such as types of materials can be amended on a PP without course to a full scrutiny. The consultation uses the example that “when one type of brick has been
approved, a similar one could readily be substituted”, this could have major impacts for a listed building and even if listed buildings were excluded from this, how would an owner be expected to understand the procedure. It is hardly simplification.
Carrying out works without Listed Building Consent is a criminal offence, whereas is it only considered as a civil matter under planning permission. Sanctions for carrying out work without LBC can be serious, whereas retrospective consent is usually given for planning permissions. It is difficult to see how these opposing structures could be amalgamated without creating a more complicated and confusing system.
Part II of the Ancient Monuments and Archaeological Areas Act 1979 makes provision for the establishment of Archaeological Areas. Designation helps to prevent important archaeological sites from being damaged or destroyed without at least allowing for some investigation and recording first. Critically, the regime applies to all works that disturb the ground and so allows for some investigation of sites proposed to be dug for utility services, such as water and gas pipes, which otherwise do not need planning permission. Five areas have been designated in England but none in Wales. The proposal is to remove the opportunity to designate such areas in Wales. CBA is particularly concerned about this proposal as although it is infrequently used, previously unknown archaeological sites are being discovered all the time. Without recourse to such a designation, important archaeological material might be lost through infrastructure works which do not require planning permission. If the Welsh proposals were later extended to England then some of our most important heritage cities (York, Chester, Exeter, Hereford and Canterbury) could be affected.
Ecclesiastical Exemption is by definition an exemption, and it is an exemption from Listed Building Consent, not from planning permission. Logically, if Listed Building Consent was to be abolished, the Exemption would lapse. It is not clear whether this possible ‘unintended consequence’ has been given due consideration.
Increase in bureaucracy
Whilst CBA would very much welcome the simplification and reduction of bureaucracy in relation to PP and the various heritage consent regimes, we consider that the current proposals would not achieve a simplification, in fact it would in some instances make it more complicated and lead to inadvertent damage to the historic environment and a further burden on planning authorities through increased enforcement actions. We also consider that ‘modernisation’ has already achieved through the 2016 Act.
CBA Wales and other heritage bodies responded to a scoping paper last year setting out our concerns. The project has now moved to full consultation stage. Copies of the documents can be found here: https://www.lawcom.gov.uk/project/planning-law-in-wales/#planning-law-in-wales-consultation
CBA Wales would encourage anyone who shares our concerns to submit a consultation response by the 1st March 2018 – all responses matter!