Checklist to Help Local Authorities Deal with Contested Heritage Listed Building Decisions
If there is a proposal to remove, significantly alter a heritage asset, or change its setting, a range of national and local policies will be relevant, but the substance of paragraphs 126, 128, 129, 132, 133, 134 and 135 from the NPPF (paragraphs 183, 185, 186, 189, 191, 192 and 193 of the March 2018 consultation draft) will almost certainly be central to a decision, along with other relevant ones from that document.
By 'contested heritage' we mean historic objects, buildings or places whose received or conventional narratives are currently challenged. The interest in interpretation of our past in the light of the latest evidence 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 and plaques or commemorative structures this advice concentrates on those. General advice on making decisions is available in Managing Significance in Decision-Taking in the Historic Environment (GPA2).
Historic England recognises that aspects of the past, as represented in our statues and monuments, can be painful and very challenging by today's standards, and some can be especially distressing or offensive for particular groups. The buildings and monuments we keep and protect - for a number of reasons - do not always wholly represent contemporary values, and some are distinctly at odds with them. In such situations there are sometimes calls to remove or alter the building or monument, and this may precipitate planning and/or listed building consent applications.
Historic England has recently published its own policy statement on contested heritage, which explains that its position is in favour of retention of listed statues and memorials, as without them the story which they represent is lost. However the decision making body in this situation is usually the local planning authority, so this guidance 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.
1) Does the authority have enough information about the heritage asset in question 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, its historic context and evolution, the reasons for its creation in the first place, 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.
Understanding what is significant about a historic object or site includes all the diverse values or interests that people associate with it. An understanding of its 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.
A building or structure may have been purpose-built for a particular location or may have been put in a particular location for a range of reasons. It may no longer be in its original location. All these factors will be relevant to a decision about any change proposed to a heritage asset.
2) 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 publicly-owned, the authority may have additional relevant information in its own archives.
3) 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.
4) 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 and the likely impact of those changes, if implemented; and
- Whether there are any suitable alternative solutions which cause less or no harm.
5) 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 requires (Section 66 of the Planning, Listed Buildings and Conservation Areas Act 1990) 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 asset's conservation. The justification for harm must be clear and convincing and the harm or loss must be outweighed by public benefit (see 6), below). The weighing process needs to take into account the importance of the asset as well as the scale of the adverse impact. When a planning or listed building application is being considered, local authorities are advised to pay particular attention to seeking a wide range of views including those of local communities as well as those with a particular interest in the asset, person, event or topic from a range of perspectives.
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 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.
6) 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 or relocation 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.
7) The balancing act: where necessary and justified, is the damage outweighed by the public benefit?
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 which is made up of three dimensions: economic, environmental and social.
8) 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 paragraph 206 and paragraph 56 of the March 2018 consultation draft. If appropriate, these might relate to time periods, relocation or storage of anything removed, and recording of the current arrangement.
Historic England may be involved in some contested heritage cases, depending on a range of factors, such as whether an item is listed at a certain grade and the degree of change proposed. 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 in this document) 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.
Also of interest...
We believe that removing difficult and contentious parts of the historic environment would risk harming our understanding of our collective past.
A season of activity from Historic England, it will explore how, why and who England remembers in its streets, buildings and spaces.