12 C O N T E X T 1 3 0 : J U LY 2 0 1 3 Legal briefing Changes to the listed building consent regime The Enterprise and Regulatory Reform Act 2013 (which received Royal Assent in April) introduces more flexibility under the listed building consent regime, writes Tom Deards. The Enterprise and Regulatory Reform Act 2013 has made a number of significant changes to the existing regime for listed building consent, namely: the exclusion of structures or objects from listing, certificates of immunity from listing, heritage partnership agreements, listed building consent orders and certificates of lawfulness of proposed works.These measures, when brought into force (by way of subsequent statutory instruments) should significantly reduce the number of individual applications for listed building consent in relation to minor or routine works to listed buildings. In addition, the act replaces the need to obtain conservation area consent for the demolition of unlisted buildings in a conservation area with a requirement to obtain planning permission. Existing regime Section 7(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 prohibits any person to execute or cause to execute ‘any works for the demolition of a listed building or for its alteration or extension in a manner which would affect its character as a building of special architectural or historic interest’ without before obtaining listed building consent from the local planning authority or secretary of state under section 8. There is currently no way for a person proposing to make minor works to a listed building to legally determine whether those works would, in fact, affect the special character of the building without making an application for full listed building consent. Understandably, conservation officers are unwilling to give any kind of informal assurances in the absence of a formal application. Furthermore, there is currently no equivalent in the listed building consent regime to ‘permitted development rights’ under the planning regime or ‘class consent’ under the scheduled ancient monument regime, which grant advance blanket consent to development or works which, while they affect the special character of a building are still relatively minor or un-controversial. Exclusion of specified objects or structures from listing Schedule 17 of the act amends the 1990 act to provide for a new listing of a building to state specifically that an object or structure is excluded from the listing. It also allows for existing listings to be updated, to exclude specific objects or structures. This should be a very welcome provision which will allow developers and conservation officers to specify at the outset which parts of the listed building are intrinsic to its special interest, and avoid some of the frequent debate over whether a particular object or structure is part of the listed building or within its curtilage when subsequent works are proposed. Certificates of immunity from listing The 1990 act is further amended by Schedule 17 to introduce a right for any person to apply to the secretary of state for a certificate stating that the secretary of state does not intend to list a specified building for at least five years. An application for a certificate can only be made after planning permission is granted but will remove the risk to a developer of a listing between the grant of planning permission and the carrying out of works. Heritage partnership agreements Section 60 of the act inserts a new section 26A into the 1990 act which enables a local planning authority to enter into an agreement with any owner (or a tenant for a term of seven years or more) of a listed building, which effectively grants advance listed building consent for works specified in the agreement, subject to conditions also contained within the agreement. Section 26A also sets out a very wide range of other provisions that a heritage partnership agreement may contain. These include setting out works which would not affect the character of the listed building (and, therefore, not require listed building consent at all), provision for the maintenance and preservation of the listed building, for public access or the provision of facilities, information or services to the public, for the restriction of access or use of the listed building, and provision for payments towards the cost of works by the local planning authority, English Heritage or the secretary of state. A number of other bodies can be party to a heritage partnership agreement in addition to the local planning authority and the owner of the listed building: another local planning authority, the secretary of state, English Heritage, a person with another legal interest in the building, an occupier of the building, any person involved in the management of the listed building, and any person who appears to have a ‘special knowledge or interest’ in the listed building (or buildings of architectural or historic interest more generally). A heritage partnership agreement must be in writing and contain provision for review at specified intervals as well as provision for possible variation and termination. A single agreement may relate to more than one listed building, which opens up the possibility of a single agreement to cover a network of listed buildings across administrative boundaries. There are also further powers for the secretary of state to make regulations for a number of further details in heritage partnership agreements, as well
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