Checklist to Help Local Authorities Deal With Contested Heritage Listed Building Decisions
The following checklist is intended to help planning authorities identify and assess relevant considerations in contested heritage cases when carrying out their planning functions, and make a decision in the wider public interest in accordance with legislation and policy – including the National Planning Policy Framework (NPPF). Its primary focus is listed buildings (which may include statues, plaques, and other commemorative structures such as memorials and monuments), but it will also have relevance in relation to other heritage assets.
By 'contested heritage' we mean historic objects, structures, buildings or places where the associated stories or meanings have become challenged. The interest in interpretation of our past has never been greater, and when heritage becomes contested, strongly-held views tend to exist on all sides.
As most of what we consider to be contested heritage relates to public art such as statues, plaques, and other commemorative structures, this advice concentrates on those types of assets. General advice on making decisions is available in Managing Significance in Decision-Taking in the Historic Environment (GPA2).
Historic England is acutely aware that certain representations of history in our public realm today can cause offence. The statues and monuments that society keeps and protects – for a number of reasons – do not always represent contemporary values, and some are distinctly at odds with them. In such situations there are sometimes calls to remove or alter the statue or monument, and this may precipitate planning and/or listed building consent applications. It is important to recognise that as a group they represent our collective past and as such have a significant heritage value.
Our stance on historic statues and sites which have become contested is to retain and explain them; to provide thoughtful, long lasting and powerful reinterpretation that responds to their contested history and tells the full story. New responses can involve re-interpretation, added layers and installations, new artworks, displays and counter-memorials, as well as intangible interventions, such as education programmes. However the decision-making body in this situation is usually the local planning authority, so this advice is designed to help those authorities to make a balanced decision. Proposals may of course also involve change such as the addition or replacement of an interpretative plaque on a statue. All such decisions need clear justification.
Local planning authorities are required to consult Historic England on listed building consent applications relating to works to Grade I or II* buildings, or the demolition of Grade II buildings. It is possible that Historic England may be asked to comment on a wide range of contested heritage cases, including those relating to the removal and relocation of statues. Where involved, Historic England will assess each case on its own merits in the context of Government legislation, policy, its own advice (including the issues outlined here), and judgement. Historic England's Conservation Principles provide an overarching approach to managing change. Our Planning Charter sets out when and how we engage in specific cases. Further information on the requirements to notify Historic England, the National Amenity Societies and the Secretary of State of certain listed building consent applications is available in the Planning Practice Guidance.
1) Are there any particularly contested or challenging assets in the local authority area for which it would be worth facilitating discussions, and/or inviting applications for their contextualisation?
Active consideration of potentially contested heritage in an area enables early information gathering (see 2, below) and engagement with the community. This may then prompt the convening of useful local discussions, and consideration of ways in which existing assets may be appropriately contextualised.
2) Does the authority have enough information about the heritage asset in question, from an appropriate range of sources, to understand its significance?
To inform its decision-making, the planning authority will need to understand the value of what is there at the moment – the asset's 'significance'.
The NPPF defines ‘significance’ as ‘the value of a heritage asset to this and future generations because of its historic interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset’s physical presence but also from its setting.
This process of understanding a heritage asset's significance is important as it helps an authority put into perspective relevant historical associations, both positive and negative, as well as other factors such as the quality of the fabric or the artistic endeavour. The information needed is likely to include knowledge of its fabric and artist, whether it is original or a replica, its historic context and evolution (including the original commission, whether the location is the original one, and the nature of relationship between the asset and its current location), the reasons for its creation in the first place (including intent, and the biography and history of the individual or event commemorated), etc. The authority may need information on such factors as its method of construction and the materials used. This is because information, such as in relation to the asset's fragility or condition, could influence decisions about change. Knowledge of the location and the originality or otherwise of the asset will help to answer questions about how much significance derives from these factors.
Understanding what is significant about a historic object or site includes all the diverse values or interests that people associate with it. Eliciting and understanding community perspectives will be important within this process, as will drawing on a wide range of other sources (including the historic environment record, as required by the NPPF).
An understanding of an asset’s significance will arise from more than just its physical appearance, the date it was designed or created, the interest of the form chosen, or who or what it commemorates. It will include the reasons for its creation, and why it is being challenged now.
3) Does the authority have enough information about any proposed changes to be able to understand the impact on the heritage asset (or assets) and make a decision in accordance with the NPPF?
The applicant needs to provide information which is proportionate to the asset's importance and sufficient to understand the potential impact of the proposal on its significance. For assets that are known to be contested, it is reasonable for the local authority to request relevant further details to better understand the particular areas of concern and the reasoning for the proposed action. This information will explain why a particular course of action is being proposed and is likely to set out the contested issues in more detail to allow an authority to consider these aspects. If the heritage asset is or was owned by a known body, that organisation may have additional relevant information in its own archives.
4) If the proposals damage what is important about the heritage asset, or the contribution that the setting makes to other assets, what is the nature of that impact?
The NPPF uses the term 'harm' and the policy encourages solutions which minimise harm or avoid it altogether. Where the proposal is to make changes to the contested heritage asset, it is quite likely that some 'harm' will be done to the heritage asset.
This stage of the process focuses on identifying these impacts; the judgement call comes later. Impacts might be direct physical ones, or indirect ones and, very occasionally, impacts brought about by a change of use without any physical change. The impact on the contribution to settings of heritage assets in the wider area will also need to be considered.
5) Assuming that the proposed alterations and changes cause some damage to the heritage asset, is that damage necessary?
This can be achieved by considering:
- The impact on the significance of the asset;
- The seriousness of the impact;
- The importance of the asset;
- The nature of the proposal (which may range from adding context to the asset, in support of a more rounded interpretation, perhaps in the form of a plaque or a new installation, to its removal – which should include a clear statement of the proposed next steps for the asset), and the likely impact of those changes, if implemented; and
- Whether there are any suitable alternative solutions which cause less or no harm.
6) Is there sufficient justification for the proposed level of damage caused?
The approach taken to justifying harm is in principle the same, regardless of how much harm is caused. Legislation (Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990) requires that, when dealing with planning applications affecting listed buildings, the local planning authority 'shall 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'.
The NPPF requires that 'great weight' be given to the conservation of designated heritage assets. The justification for harm must be clear and convincing and the harm or loss must be outweighed by public benefit (see 7, below). The weighing process needs to take into account the importance of the asset as well as the scale of the adverse impact (for non-designated heritage assets, a balanced judgement will be required, having regard to the scale of any harm or loss and the significance of the heritage asset).
A good application will have set out the justifications clearly in the statement of the heritage asset's significance and the impact of the proposals. In addition to this, the views of statutory consultees (such as the national amenity societies) and those who have responded to the application need to be taken into consideration. On contested sites the authority may need to plan for a greater volume of information provided by third parties and demonstrate how this has been taken into account when the authority makes a decision.
7) When dealing with designated heritage assets, what are the public benefits of the proposal?
These benefits can cover a wide range of considerations and are likely to go beyond straightforward heritage issues. The continued conservation of a heritage asset is a public benefit, even if its historic interest is contested in some way. The alteration of a contested heritage asset may provide public benefits. These might relate directly to the heritage asset, for example by adding additional interpretation which will help people to gain a deeper understanding of the historical context which led to the creation and installation of the asset.
8) The balancing act: where necessary and justified, is the damage outweighed by the public benefit?
In relation to designated heritage assets, it is vital that the authority sets out the harm and public benefits very clearly and analyses those considerations to be able to come to an informed decision. The NPPF sets out how to analyse this, bearing in mind that heritage assets are irreplaceable, any harm needs clear and convincing justification, and there is a presumption in favour of sustainable development (reflected in three overarching objectives for the planning system: economic, environmental and social).
For non-designated heritage assets, as noted above, a balanced judgement will be required, having regard to the scale of any harm or loss and the significance of the heritage asset.
9) If the answer to making a change is 'yes', is it appropriate to impose conditions on the permission?
Any conditions would need to meet the NPPF tests. Advice on planning conditions is given in the NPPF and planning practice guidance. If appropriate, these might relate to time periods, relocation or storage of anything removed, and recording of the current arrangement.