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Improving Listed Building Consent: August 2012. (DCMS)

The Heritage Team
Culture Directorate
Department for Culture, Media and Sport
2-4 Cockspur Street
London
SW1Y 5DH

Improving Listed Building Consent
Consultation Questions - Response of the Association of Local Government Archaeological Officers (ALGAO)

Introduction
The Association of Local Government Archaeological Officers (ALGAO) is the national body representing Local Government archaeology services at County, District, Metropolitan, Unitary and National Park authority level. These services maintain Historic Environment Records (HERs) and provide advice to nearly all Local Planning Authorities in the country. ALGAO: England co-ordinates the views of its member authorities and presents them to government and to other national organisations. It also acts as an advisor to the Local Government Association (LGA) on archaeological matters. The range of interests of our members embraces all aspects of the historic environment, including archaeology, buildings and the historic landscape.

Thank you for inviting us to participate in this consultation. There has been some concern at the short time allowed for responses, a single month in the major holiday period causes difficulties in producing enough time for a well-considered response.

As a general caveat to our response we would comment that the content of the consultation seems to represent perceived problems with the current Listed Building Consent process. However, it does not appear that any objective evidence has been put forward to demonstrate the actual existence of such problems. Neither is any data evinced as to how widespread such problems might be. It appears from the consultation questions that there may be fundamental misunderstanding as to how the Listed Building Consent process works in practice in Local Planning Authorities.

Each area of the country has regional and local variation producing local distinctiveness in historic buildings so that ‘generic solutions’ are difficult. This local variation requires local knowledge to assess impacts to significant buildings

Comments
Question 1: Do you agree with the proposal to introduce a system of prior notification of works to a listed building, leading to deemed Listed Building Consent if the local planning authority does not request a full application within 28 days? If not, please clearly state your reasons and your views on the approach you consider the Government should take.

Response
The appropriateness of such a system would seem to hinge upon there being a national very clearly defined list of specific works applicable to all regions of the country and all classes of building that would be demonstrably acceptable in listed building terms and would not cause unacceptable harm. Such works ought also to be generally incapable of causing “collateral damage” when implemented, whether through ignorance or intent. It is considered that this is likely to be a short list. This also needs to be considered in the context of the standard of information currently supplied to LPA’s in support of proposals affecting Heritage Assets. Heritage Statements for instance are routinely sub-standard and incapable of being interpreted adequately by the LPA without further information being required from applicants to elucidate precisely what is being proposed and what actual impact it could have on the significance of the asset affected.

It is considered that a prior notification system related to a very simple and unambiguous list of works which could also be very simply described by applicants may be workable. However, this would only be the case where LPA administrative processes are efficient and qualified expert historic environment advice is employed to “sign off” each prior notification.

Since these circumstances appear not to pertain universally, prior notification could introduce new risks to listed buildings where damaging works are deemed to have gained consent by default simply through “timing out”. Seeking to avoid this happening it is also possible to envisage LPA’s devising a pragmatic approach by routinely requiring a full application at the point of notification simply by way of “belt and braces”. All in all it is considered highly probable that default permission will mean a small number of extremely damaging works will take place without control, particularly in areas where planning authorities care least and do not have expert historic environment advice.

The solution would seem to be for LPA’s to employ properly qualified historic environment advisers charged with ensuring the provision of expeditious expert advice to applicants at the outset of proposals.

Question 2: If you are commenting from a Local Planning Authority, are you able to comment on the proportion of your LBC applications which require amendment or the application of non-standard conditions prior to consent? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.

Response Not generally applicable as this is a corporate ALGAO response but a limited number of individual members have commented viz:

  • Free pre-application advice sifts out potential applications that do not in fact require LBC. Otherwise at least 95% of applications across all Surrey LPA’s require non-standard conditions to be applied. Approximately 90% of heritage statements submitted to the team are inadequate, and in some cases are actually wrong (including those by some IHBC AABC members). These statements are generally formulated after the applicant’s desired scheme has been prepared, rather than being designed to inform and guide the design process from the outset.
  • In Dudley Metropolitan Borough virtually all submitted applications (not having had the benefit of detailed pre-application advice) will require amendment and virtually all will require tailor made conditions. This ensures (inter alia) that correct detailing is achieved and that the quality of work implemented as part of the consented works and that the type of materials used are acceptable.

Question 3: Do you agree with the proposal to introduce a voluntary system of local and national class consents? If not, please clearly state your reasons and your views on the approach you consider the Government should take.

Response Do not very strongly disagree in principle but find it hard to actually envisage circumstances where class consents would be applicable or appropriate- or even particularly useful- perhaps certain internal works? However in this regard it is notable that most listed buildings have not been surveyed internally prior to accession to the list, therefore internal decorative schemes and layouts could be highly sensitive eg new kitchen or bathroom installations with attendant pipe runs and electrical installations could cause considerable damage. Also has the potential to introduce confusion eg the owner of a well-preserved terraced house might hear from a neighbour that the council did not require permission for internal works and unwittingly strip out the last original interior fittings of a terrace. Considerable overlap with Statutory Management Agreements for “institutional” cases eg Canals and Rivers Trust?

Question 4: If you are commenting from a Local Planning Authority, are you able to comment on the likely applicability of this option (2) within your area, in terms of the kinds of listed building and type of works to which it might be applied? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.

Response Not generally applicable as this is a corporate ALGAO response but a limited number of individual members have commented viz:

  • The danger with Option 2 is that it can be applied as too much of a blanket decision – all listed buildings are different and have different needs and areas of significance.
  • There is too much variety in Surrey’s listed buildings to have a local class consent system. It would be more time-consuming to create than to deal with applications on a case-by-case basis. It would lead to incremental, unrecorded loss of historical information. It might be appropriate for solitary buildings with repetitive features and one Surrey model village for retired workers where many of the homes are listed and in the ownership of a single trust.
  • In Dudley Metropolitan Borough no such applicability is apparent other than perhaps (?) as regards concrete repairs to Modern Movement buildings at Dudley Zoo and then only as part of a defined and approved ongoing maintenance cycle.

Question 5: Which of the options set out in this consultation to reduce the number of LBC applications for works with limited or justifiable harm to special interest (Options 1 and 2) do you prefer? Please state the reasons for your preference.

Response
Since option 2 does not appear at all generally applicable and it is considered that any take up at all by LPA’s would be at best very patchy on a national scale this option does not appear workable in any practical sense. Option 1 could be made to work as a bureaucratic mechanism in LPA’s as evidenced by pre-existing mechanisms for eg Part 31 Notifications. However, it has the potential to cause harm (please see Q1 response) and in addition it appears highly questionable whether it would have any measurable beneficial impact that would justify putting the procedure in place.

Question 6: Do you agree with the proposal to introduce;
a) a Certificate of Lawful Works to Listed Buildings for proposed works;
b) a Certificate of Lawful Works to Listed Buildings for works already undertaken?
If not, please clearly state your reasons and your views on the approach you consider the Government should take.

Response In relation to a) above this is considered to be a sensible proposal that would simply formalise current common practice whereby the process usually involves an exchange of letters.

In relation to b) above (as the consultation itself notes) it is considered that this could be problematic if it is seen by current owners as an opportunity to undertake works first and then apply for a certificate retrospectively.

Question 7: If you are involved in the Listed Building Consent system either in a Local Planning Authority or any other capacity, can you provide further information on the following;
a) possible numbers of LBC applications currently made due to the lack of a formal mechanism for LPAs to confirm whether or not consent is needed;
b) the numbers of informal requests received or made every year concerning the need for LBC;
c) how such queries are handled?

Response Not directly applicable as this is a corporate ALGAO response.

Question 8: Do you agree with the proposal to introduce a system whereby accredited independent agents provide expert reports on LBC applications directly to the LPA? If not, please clearly state your reasons and your views on the approach you consider the Government should take.

Response ALGAO do not agree with this proposal.

It appears to ALGAO that this is an area that can in many ways be directly paralleled with the handling within the planning process of non-designated Heritage Assets (including those with archaeological interest) and which does in fact increasingly involve consideration by ALGAO Members on behalf of the LPA of proposals affecting the significance of historic buildings, including listed buildings. This process is working well under the new NPPF arrangements on other heritage assets and is thus worth referring to.

ALGAO Members act as “curators” of the historic environment resource of their areas on behalf of LPA’s and of the public but work collaboratively with professional archaeological contractors employed commercially by developers. This is in order to glean appropriately detailed information about the historic environment resources present on a development site, what constraint they represent, and how development proposals can be mitigated if necessary so as to become (in most circumstances) acceptable and approvable in planning terms. (Exactly the same basic principles can apply to historic structures).

On any given site the curator provides a brief for the developer as to what information is required with the expectation that the developer will employ a suitably qualified archaeological contractor to deliver the information to the LPA in line with the brief supplied. The Curator will need to be satisfied that the appointed contractor is properly professionally accredited (either through having demonstrably appropriate experience or as eg an IfA Registered Archaeological Organisation) and will monitor the work in the field and vet the contractors final report as being fit for purpose. In this way properly mediated information is made available by the applicant to the LPA for decision making purposes. This approach strikes a balance between legitimate commercial interests and the public interest by creating a demonstrably level playing field for all concerned. It also fosters mutual professional respect as between contractors and curators albeit they will approach the issues involved from slightly different directions, one acting on behalf of “the client” the other on behalf of the LPA and the public interest.

ALGAO would offer up the successful model outlined above for consideration as a possible alternative to what is being proposed in this consultation, with conservation officers being viewed as de facto “curators”.

ALGAO has members who are also conservation officers. It is considered that rather than the current proposal (Q8) it would drive up the standard of listed building applications more effectively if to satisfy the requirements of NPPF paragraph 128 (regarding significance and impact) applicants for LBC were obliged to utilise only suitably professionally accredited agents to supply supporting information for complex LBC applications (those not meeting “deemed consent” criteria?). This could improve upon the current situation whereby the vast majority of applications are made by non-expert agents and are consequently incapable of expedient determination without the LPA having to require the submission of more detailed information whilst also undertaking site visits in order to clarify the actual nature of the proposals being put forward and their impact on significance. The workload of LPA Conservation Officers, therefore, largely resides in the rehabilitation of inadequately described and poorly thought out proposals to a point where the applicants ambitions can as far as possible be accommodated. Recommendations as to approval or otherwise flow straightforwardly from that.

Accredited Agents might be expected to put forward an appropriately detailed and reasoned case in support of their clients proposals for consideration by the LPA and its professional advisers (who will normally have extensive accumulated local knowledge and direct access to casework files and other pertinent historic information). This would be welcomed, but they should not be able to put forward specific recommendations as such to the LPA. Recommendations from this source would invariably be influenced primarily by the requirements of the client (and there would be every incentive not to vary the clients original brief) and not always by the dictates of the public interest, which only the LPA has a statutory duty to uphold. Even in cases where the two interests are largely synonymous a perception of bias would be created that could undermine public confidence in the LBC system overall.

Additionally and very pertinently Accredited Agents in making recommendations would lack direct access to (and normally awareness of) the much wider range of LPA professional expertise necessary to allow the actual implementation of apparently straightforward proposals to make changes to a listed building. Such changes might in and of themselves appear appropriate and to cause little harm but they will actually need to be compliant with a whole range of other legislation which can have attendant physically impactful consequences that also need to be taken into account.

For example, as best practice, an LPA pre and post-application process in relation to eg the conversion of a listed building to apartments in a town centre would call upon extensive in-house expertise. This would normally include building control as regards fire safety including means of escape, protected shafts and the installation of fire separation and sound attenuation materials between floors; advice from an access officer in relation to access for all provisions; from environmental health officers in relation to noise and air quality considerations eg as regards window design and ventilation, highways engineers for parking standards and requirements for vehicular access and archaeological advice eg in relation to the potential impact of groundworks. This list is by no means exhaustive.

To summarise, it is not considered that Accredited Agents will have the necessary impartiality or have access to sufficient overall expertise to be entrusted with making formal recommendations to LPA’s- clearly this response also applies to Q.11 below. However, Accredited Agents clearly would have a role in making detailed information available to the LPA as an aid to proper decision making.

As regards Questions 9-10 and 12-14 ALGAO is happy to defer to other consultees with more direct experience of the processes involved.

Question 9: If you are commenting from a one of the professional institutes listed, are you able to comment on the likely impact on your institute of establishing, monitoring and administering such an accreditation system to support this option? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.

Question 10: How should the existing heritage accreditation scheme be modified or replaced to accommodate this proposal? What professional standards and enforcement would be needed to cope with the potential conflict of interest, and should agents scope be constrained through national government?

Question 11: Should the proposal for advice be extended further, as some stakeholders have suggested, for example allowing accredited agents to certify LBC directly themselves?

Question 12: If you are commenting from an authority which is able to take action under Enforcement and Compulsory Purchase powers, can you give any examples of where you have done so, or can you comment on the reasons why you have chosen not to?

Question 13: Do you consider that amending the legal powers relating to Urgent Works Notices, Repairs Notices and Compulsory Purchase could be effective in encouraging authorities to pursue cases of neglect to listed buildings? If so, please clearly state your reasons.

Question 14: Can you propose any further changes or amendments, including non-statutory changes, beyond those suggested here, which would provide additional benefits or improvements to protect Buildings at Risk?

Pete Boland, Convenor, ALGAO Historic Buildings Committee; Beryl Lott, Secretary Historic Buildings Committee
August 2012