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APPENDIX: LISTED BUILDINGS AND CONSERVATION AREAS
Partial demolition
Proposal: The demolition of part of a listed building should be treated as demolition for the purposes of listed building control and not as an alteration.
Source: Circular 1/2001
Present position: Following the decision of the House of Lords in Shimuzu (UK) Ltd. v Westminster City Council [1997] JPL 523 the demolition of part only of a listed building is considered to be an alteration to the building and not demolition. The decision was important at that time because of the compensation implications resulting from a refusal of listed building consent for an alteration to (but not the demolition of) a listed building. The compensation implications have no continuing relevance; but listed building control over alterations is less stringent than it is over demolition. In the first place, an alteration must affect the character of the building as a listed building before it is subject to listed building control. In the second place, there is a statutory requirement when considering an application for listed building consent to have 'special regard' to the desirability of preserving the building. The Memorandum of Guidance talks in terms of a presumption in favour of the preservation of listed buildings except where a strong case can be made out for demolition.
There are, however, more significant practical implications for unlisted buildings in conservation areas. These are subject to a variant form of listed building control over their demolition which manifests itself in the need for conservation area consent. As a result of Shimizu, conservation area consent was no longer required for the partial demolition of an unlisted building, including gates, fences, walls or other means of enclosure, in a conservation area. The effect of the Town and Country Planning (Demolition which is not Development) (Scotland) Direction 2001 is that partial demolition of gates, fences, walls or other means of enclosure within a conservation area may now be regulated through the need for planning permission. Nevertheless, the unanimous conclusion from the consultation paper issued on the subject was that the definition of listed building be changed so that the partial demolition of an unlisted building in a conservation area can be controlled by way of the requirement to apply for conservation area consent. This would restore the level of control pre- Shimizu. Circular 1/2002 sets out an undertaking to do this as soon as a legislative opportunity arises.
Implementation: The word 'building' in the term 'listed building' and reference to a 'building in a conservation area' in the Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Act 1997 should be defined to include part of the building.
Right to object to listing
Proposal: Those with a legal interest in the building should have an opportunity to make representations before a building is listed.
Source: The Green Paper, Protecting the Built Heritage, Cm.3267, 1996, para.11.
Present position: There is no formal opportunity for those with a legal interest to make representations before a building is listed, although this may happen informally. Quite often, the first such people will know of the listing is when they are formally notified by the planning authority after the event. They can however challenge the listing in a roundabout way by subsequently applying for listed building consent and then appealing a refusal on the ground that the building is not of special architectural or historic interest and should be removed from the list (s.19(3) of the Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Act 1997).
Implementation: An amendment of the Listed Buildings Act would be required to incorporate a right to make representations.
Discussion:
- it would be necessary for a proposed listing to take effect immediately, otherwise the building might be demolished before the representation procedure could be completed. The tree preservation order procedure provides a model.
- consideration would have to be given to the grounds upon which representations could be made. Should they be confined to the question whether or not the building is worthy of listing (like representations against the designation of a SSSI); or should they extend to questions of the effect of listing on the beneficial use of the building and on future development plans?
- should the right to make representations be confined to those with a legal interest in the building or should the right be extended to anyone who can show they have a genuine interest in the character of the building?
Notifying Scottish Ministers
Proposal: The requirement on planning authorities to notify Scottish Ministers of their intention to grant listed building consent could be more selective.
Source: The Green Paper, Protecting the Built Heritage, Cm. 3267, 1996, para.21
Present Position: Under s.12 of the Listed Buildings Act, planning authorities must notify Scottish Ministers that they intend to grant an application for listed building consent. This gives Ministers an opportunity to consider whether to call-in the application for a decision. The Green Paper notes that on average some 2,000 applications are referred to Scottish Ministers each year of which less then 10 are called-in.
Implementation: An amendment would be required to s.12 of the Listed Buildings Act to enable Ministers to list by regulation those categories of application to be notified to them.
Ecclesiastical exemption
Proposal: Works to the exterior of ecclesiastical buildings should lose their exemption and become subject to listed building and conservation area control.
Source: Green Paper, Protecting the Built Heritage, Cm. 3267, 1996, Part IIB, para.3. See also K Last, "Listed Buildings: Ecclesiastical Exemption" (2002) 89 SPEL 14.
Present position: Ecclesiastical buildings that are in use are exempted from listed building and conservation area control by ss.54(1) and 67(1) of the Listed Buildings Act, although they may be subject to development control where such work constitutes a material change to the external appearance of the building. The effect of this proposal would be to bring within control of the Listed Buildings Act works to the external appearance of such buildings, whether or not they constitute development.
Implementation: Amendment of ss.54(1) and 67(1) would be required.
Urgent works to preserve ancient monuments
Proposal: Ancient monuments, which are also listed, should not be excluded from the power conferred on planning authorities to undertake urgent works to preserve unoccupied listed buildings.
Source: The Green Paper, Protecting the Built Heritage, Cm. 3267, 1996, para.30(i).
Present position: Under s.49 of the Listed Buildings Act, planning authorities may execute works urgently required for the preservation of an unoccupied listed building. Section 55 excludes scheduled ancient monuments from that provision.
Implementation: Section 49 should be deleted from the list of sections in s.55.
Discussion:
- Is the planning authority the appropriate body to undertake urgent work to unoccupied ancient monuments?
Having special regard to ancient monuments
Proposal: Planning authorities, in exercising planning powers, should have special regard to the desirability of preserving ancient monuments.
Source: Historic Scotland.
Present position: There is no such requirement at present. The proposal is modelled on s.14(2) of the Listed Buildings Act which provides that in considering whether to grant listed building consent the planning authority must have special regard to the desirability of preserving the listed building or its setting or any features of special architectural or historic interest that it may possess. An identical duty is placed on a planning authority when considering whether to grant planning permission for development affecting a listed building or its setting (Listed Building Act, s.59(1)) and a similar duty applies to the exercise of powers in respect of buildings in a conservation area (s.63(3)).
Implementation: A similar provision would have to be inserted into the 1997 Act or into the Ancient Monuments and Archaeological Areas Act 1979.
Designating a conservation area
Proposal: The designation of a conservation area should include a statement identifying the special features of the area which it is considered desirable to conserve and enhance.
Source: The Green Paper, Protecting the Built Heritage, Cm. 3267, 1996, para.26.
Present position: NPPG 18, Planning and the Historic Environment, recommends that, prior to designation of a conservation area, planning authorities should prepare an appraisal to identify the key elements that contribute to the areas special architectural or historic interest. This does not have formal status. Section 63 of the Listed Buildings Act 1997 requires authorities to formulate and publish proposals for the preservation and enhancement of designated conservation areas. This duty is largely ignored in practice
Implementation: An amendment to Part II, s.62 of the Listed Buildings Act would be required to incorporate this requirement.
Discussion: There is something to be said for requiring the 'enhancement' proposals to be a part of the designation, although whether there will be many new designations in the foreseeable future is questionable.
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