The Levelling Up and Regeneration Act 2023 (LURA) introduced a number of proposed changes to legislation that are relevant to the historic environment in England. Below we take a brief look at the proposals and what they may mean in practice. As we will see, the proposed changes are mainly to tidy up and rationalise heritage protection in England, particularly to ensure consistency with the National Planning Policy Framework (NPPF) and between different types of designated heritage assets, as well as following the Historic Environment (Wales) Act 2016. Except for one or two proposed changes, it will be business as usual for most people involved in the planning system and the historic environment day-to-day.
The main thing to bear in mind is that these changes may never come into force. If they do, the date/s for the amendments to the primary legislation (e.g. the Planning (Listed Buildings and Conservation Areas Act) 1990 (PLBCA)) have not yet been set. They will be brought into force by commencement regulations, and the amount of notice we will have beforehand is not known. So, for now, the below remain potential changes to heritage planning legislation in England. The following is intended as a summary of the key provisions and in reference to the planning system in England, so please refer to the LURA and primary legislation for all the proposals and the specific wording and keep your eyes peeled for their formal adoption into law.
Expanding the statutory duty to include other designated heritage assets
This is probably the key proposed change in terms of day-to-day planning applications. A proposed new s. 58B in the Town and Country Planning Act 1990 sets out that in considering whether to grant planning permission, or permission in principle, that affects a “relevant asset” or its setting, a Local Planning Authority (LPA), or the Secretary of State, must have special regard to the desirability of preserving or enhancing the asset or its setting.
The relevant assets identified are Scheduled Monuments, Registered Parks and Gardens, Protected Wreck Sites and World Heritage Sites.
This would introduce a statutory duty to preserve or enhance these assets. Currently, they are covered by national and sometimes local planning policy, and the statutory duty only relates to listed buildings and conservation areas under the PLBCA. The NPPF already requires great weight to be given to the conservation of designated heritage assets in planning decisions, which all these assets are identified as in the NPPF. Whilst this proposed change will give greater weight and importance to these assets in planning decisions, the principle is already established and so they remain an important consideration for projects which may affect them. Registered Battlefields (also designated heritage assets) are not included in the proposed amendments.
Compensation for loss or damage caused by service of a building preservation notice
This is likely to have the most impact as it is a significant change. Building preservation notices (BPN) are served by LPAs (as well as Historic England in London) and mean a building will be assessed for listing by Historic England and treated as though it is listed for six months (or until a decision is made on its listing if sooner).
It is proposed to amend s.29 of the PLBCA to only relate to buildings in Wales. This would mean that those with an interest in a building which has a BPN served on it in England, would no longer be entitled to claim compensation from the LPA.
In addition, proposed amendments to s. 3 in the PLBCA include that an LPA must consult with Historic England before serving a building preservation notice, except where Historic England proposes to serve a BPN under this section.
If this is enacted it is likely to have the effect that more LPAs will apply for these notices, as the risk of compensation claims would be removed. The potential for the listing of buildings on a site should therefore be considered from the outset of a project as well as factoring in the potential of a BPN being issued.
Temporary stop notices for listed buildings in England
Proposed new sections 44AA, 44AB and 44AC of the PLBCA would provide for temporary stop notices in England where works are undertaken to a listed building without listed building consent and which would affect its special interest, or where the works are not in compliance with a condition of a listed building consent.
This would bring England in line with Wales where temporary stop notices are already provided for in legislation. Although unlikely to be a common occurrence, the introduction of these measures would be meaningful as they would give LPAs power to immediately stop works to a listed building whereas currently they have to apply to the High Court or a county court for an injunction or issue a listed building enforcement notice, with the latter more focused on addressing the unauthorised works that have taken place.
Temporary stop notices can be in force for up to 56 days. The LPA will not be able to issue another temporary stop notice for the same works unless they have taken other enforcement action since issuing the previous notice.
The new sections relate to the practical details of the notices, sets out that it is an offence to contravene a temporary stop notice and what the defence is against this, as well as compensation measures.
A number of sections of the PLBCA are proposed to be amended to make reference to the proposed new sections 44AA-AC.
Statutory duty extended to preserving or enhancing listed buildings
Sections 16 and 66 of the PLBCA are bread and butter when it comes to development affecting listed buildings. Therefore, the following amendments are of note but in practice are unlikely to have a significant effect.
Section 16 relates to decisions on listed building consent applications. Section 16(2) currently states (my emphasis) “In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State 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 proposed amendment states that in England, the reference to “preserving” is to be read as “preserving or enhancing”.
Section 66(1) relates to decisions on applications for planning permission for development that affects a listed building or its setting and also requires “…local planning authority or, as the case may be, the Secretary of State 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 proposed amendment is the same for s.16 in that reference to “preserving” is to be read as “preserving or enhancing”.
This would make the wording consistent with that of s. 72(1) of the Act which relates to the character or appearance of conservation areas, as well as the NPPF which includes both conserving and enhancing heritage assets. In practice, this amendment acknowledges that there can be enhancement, but it does not require it, so preserving a listed building’s special interest would still be sufficient.
Urgent works to preserve listed buildings
S.54 of the PLBCA is proposed to be amended so that urgent works can be undertaken to all parts of a listed building, even if in use.
Our in-house Heritage and Townscape Team can provide advice on the above as well as the full range of heritage planning support you may need. Even if the above proposed amendments are not enacted, it is still important, for example, to consider the potential listing of buildings on a development site. We have the experience and expertise to advise project teams on matters such as this to reduce risk to project programmes.
