Listing & the Enterprise and Regulatory Reform Act
The Enterprise and Regulatory Reform Act (ERRA) has enabled a number of heritage reforms, including an amendment to the Planning (Listed Buildings and Conservation Areas) Act 1990 that provides two potential ways to be more precise about what is listed.
The empowerments, found in amendment s1 (5A) (a) and (b) of the 1990 Act, allow us to say definitively whether attached or curtilage structures are protected; and/or to exclude from listed building consent objects that are fixed to a listed building. It also allows us to state definitively that a part or feature of a listed building is not of special interest, for the purposes of listed building consent.
When will the provisions be used?
These provisions came into force on 25 June 2013. They will be used when and where appropriate, where sufficient information is available, and where their use will have clear benefits. These provisions build on modern approaches to designation, which seek to provide as much clarity as possible about where special interest lies, and where it doesn’t. The new empowerments allow us to go a step further and make such statements definitive, where suitable. This is done with a view to making it clear whether listed building consent applications are required for certain parts of a site, which is often an area of uncertainty.
It is important to note that even though listed building consent will not be needed for works to those attached or curtilage structures that have been excluded from protection, it might still be required for works that affect the fabric of the principal listed building. Owners and managers should always check this with the local planning authority.
A List entry that makes use of these provisions will clarify what attached and curtilage structures are excluded from the listing and/or which interior features definitively lack special interest.
However, owners and managers should be aware that other planning and development management constraints might apply to these structures, and should clarify these with the Local Planning Authority. For example, local planning authorities are obliged to consider the effect of development on the setting of a listed building.
It is also important to note that descriptions of a building and its special interest in the List are not definitive and even a longer, modern entry should not be treated as an exhaustive survey of features of interest. When the new provisions are invoked, we can be categorical in saying that certain features do not hold special architectural and historic interest and this will be clear in the text; however, silence on a feature does not imply a lack of heritage value.
The new approach will not automatically apply to existing listings, although in certain cases we will consider a formal amendment to a listing in line with the new empowerments. Such amendment requests will be sifted according to priority (see Requests for Re-Assessment of Listed Buildings) and will be expected to require substantive revision and to provide clear management benefits.
The former BBC Television Centre at White City in West London is the kind of site for which the new provisions would be helpful and appropriate as it will allow us to specify the extent of listing at a multi-phased complex and, within that, which interiors possess or lack special architectural and historic interest.
For new listings, Historic England will apply this ERRA approach as and when it is appropriate. We cannot form a view on structures we have not seen, so it will be in an owner’s best interest to provide complete access to a site. We consult mid-way through any designation case and this is a good opportunity for owners and Local Planning Authority colleagues to put forward any responses about the suitability of being specific about curtilage structures or areas within the principal building. All views will be considered as part of our assessment. If the recommendation is positive (ie that the building in question should indeed be listed), then it will be clear from the draft List entry – through the use of a specific sentence that cites s1(5A) of the 1990 Act and way of approaching the text and the map – whether the new provisions are being invoked.
It is anticipated that the provision to state categorically that specific interiors are not of special interest will apply most readily to modern buildings, as to do so will require certainty that there are no hidden features of interest. Where there is any possibility of hidden significance, eg in an older building, then we will leave the identification of significance to be addressed as and when changed is contemplated.
Certificates of Immunity from listing
A welcome development of the ERRA is a relaxing of approaches to Certificates of Immunity (COIs), which can now be applied for at any time, not just in relation to a planning application. A COI is a legal guarantee that the building or buildings named in the certificate will not be considered for listing for five years subsequent to the date on which the certificate is signed.
Applications for COIs are often prompted by a need for certainty about designation in advance of changes to a site. Didcot A Power Station in Oxfordshire, constructed between 1965 and 1974, was a case which was fully assessed by us in 2013 and a COI granted by the Secretary of State.