Decisions: Legal Requirements for Listed Building and Other Consents
Most of the principles that should be adhered to when making planning and other consent decisions affecting the historic environment are set out in policy and guidance. However, the law introduces some important and inescapable considerations for certain applications.
When making a decision on all listed building consent applications or any decision on a planning application for development that affects a listed building or its setting, a local planning authority must 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. Preservation in this context means not harming the interest in the building, as opposed to keeping it utterly unchanged.
This obligation, found in sections 16 and 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (1), applies to all decisions concerning listed buildings.
The recent Court of Appeal decision in the case of Barnwell vs East Northamptonshire DC 2014(2) made it clear that in enacting section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (1) Parliament’s intention was that ‘decision makers should give “considerable importance and weight” to the desirability of preserving the setting of listed buildings’ when carrying out the balancing exercise'.
Decision-making policies in the NPPF (3) and in the local development plan are also to be applied, but they cannot directly conflict with or avoid the obligatory consideration in these statutory provisions.
When considering any planning application that affects a conservation area a local planning authority must pay special attention to the desirability of preserving or enhancing the character or appearance of that area.
This duty goes beyond just decisions on permissions and applies to the exercise by the local authority of all its other functions under the planning acts, such as compulsory acquisitions, urgent works and grants.
The House of Lords in the South Lakeland case (4) decided that the “statutorily desirable object of preserving the character of appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say preserved.”
A development that merely maintains the status quo, perhaps by replacing a building that detracts from the character and appearance of the conservation area with a similarly detrimental building, would satisfy the statutory consideration. This is notwithstanding that the existing detrimental building presents an opportunity, when it is being redeveloped, to improve the environment.
However, in a number of ways the policies in the NPPF seek positive improvement in conservation areas. Most explicitly paragraphs 185 and 192 require that local planning authorities should take into account "the desirability of new development making a positive contribution to local character and distinctiveness". The design policies further reinforce the objective of enhancement of an area's character and local distinctiveness, concluding that "Permission should be refused for development of poor design that fails to take opportunities available for improving the character and quality of an area..." (paragraph 130).
Compliance with both the statutory consideration and the NPPF policies therefore, generally speaking, requires account to be taken of the desirability of taking opportunities to enhance the character and appearance of a conservation area. As such, whilst the South Lakeland case (4) is still relevant to the interpretation of statute, policies in the NPPF encourage enhancement.
The above statutory decision-making considerations and the related designation regimes refer to the preservation or enhancement of the special architectural or historic interest of the heritage asset or its character and appearance. The NPPF sets out decision-making policies using different terminology, referring in particular to ‘conservation of significance’.
In essence, ‘significance’ is the sum of the heritage interests and so the special architectural and historic interest in a listed building or conservation area is part (or all) of its significance.
‘Conservation’ is defined in the NPPF as the process of maintaining and managing change to a heritage asset in a way that sustains and where appropriate enhances its significance. On the face of it this appears to contrast with the statutory duty to consider the desirability of ‘preserving’. However, the House of Lords in the South Lakeland case (4) decided that a conservation area would be preserved, even if it was altered by development, if the character or appearance (its significance in other words) was not harmed.
So both ‘conservation’ and ‘preservation’ are concerned with the management of change in a way that sustains the interest or values in a place – its special interest or significance. However, ‘conservation’ has the added dimension of taking opportunities to enhance significance where opportunities arise and where appropriate.
(3) National Planning Policy Framework, Ministry of Housing, Communities & Local Government, June 2019