The Department for Digital, Culture, Media & Sport (DCMS) published its revised ‘Principles of Selection for Listed Buildings’ on 19 November 2018, replacing the 2010 version of the document. While the revised principles do not represent a major departure from the previous principles of selection, the revised document clarifies the relevant approach and criteria to be considered and expands upon previous definitions. A summary of thirteen key changes is provided below.
Definitions of ‘building’ and ‘listed building’The revised document now incorporates the established definitions of a ‘building’ and ‘listed building’ (at para. 6):“For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.”This additional text does not reflect a change in the legal position and is set out here for clarity.
Secretary of State’s powers to specify the extent of listed buildingsThe revised document sets out the Secretary of State’s policy in relation to the new powers to specify the extent of listed buildings at the time of listing. Paragraph 11 of the revised document sets out that the Secretary of State commits himself to exercise Section 1(5a) of the Enterprise and Regulatory Reform Act 2013 in order to provide as much clarity as possible. However, most new listings still do not invoke Section 1(5a) so this may represent a change in how listings are drafted. It is not yet clear what the impact of this will be and the extent to which Historic England’s recommendations to the DCMS will make more use of Section 1(5a) from now on.
Expansion of definition of ‘architectural interest’ to include engineering, technology and artistic distinctionThe definition of architectural interest has been expanded. Both the 2010 and 2018 documents noted in similar wording that “to be of special architectural interest a building must be of importance in its design, decoration or craftsmanship” (para. 16 of the 2018 principles) and that special interest may also apply to particularly significant examples of building types or techniques (e.g. buildings displaying technological innovation or virtuosity) and significant plan forms. The revised document adds the following (at para. 16):“Engineering and technological interest can be an important consideration for some buildings. For more recent buildings in particular, the functioning of the building (to the extent that this reflects on its original design and planned use, where known) will also be a consideration. Artistic distinction can also be a factor relevant to the architectural interest of buildings and objects and structures fixed to them.”Engineering appears to be given a greater emphasis in the revised document: at paragraph 20 it is stated that buildings that are “important for reasons of technological or material innovation” and “engineering” may be of special interest, despite a lack of special interest in their external visual quality.These changes to the text reflect how long-established listing practice has approached ‘architectural interest’, seeing it as a broad term which can include all forms of design and craftsmanship; technological, aesthetic, stylistic, artistic et al. The new text is unlikely to change the sort of things which are added to the National Heritage List in that it reflects established practice.
Widening of definition of ‘historic interest’The 2018 document provides a wider definition of ‘historic interest’, identifying that association with groups and events, not just individuals, may render a building of historic interest. In the previous version of the document, buildings of historic interest had to illustrate important aspects of the “nation’s social, economic, cultural or military history and/or have close historical associations with nationally important people”. In the revised 2018 document, to be considered for historic interest, “a building must illustrate important aspects of the nation’s history and/or have closely substantiated historical associations with nationally important individuals, groups or events; and the building itself in its current form will afford a strong connection with the valued aspect of history” (para. 16).The change may be related to bringing the definition of ‘historic interest’ more closely aligned with Historic England’s “Conservation Principles” which refer to the associative and illustrative aspects to Historic Value and which are, themselves, currently being reviewed.
Group value of diverse buildingsThe definition of ‘group value’ has been expanded to emphasise that group value doesn’t relate just to contemporaneous or stylistically similar buildings, but rather group value can “be achieved through a co-location of diverse buildings of different types and dates” (para. 17).
Consideration of conservation areasThe revised document also identifies that when making a listing decision, the Secretary of State can take into account “the character or appearance of conservation areas” and the “desirability of preserving or enhancing the character or appearance of that area” (para. 17), which wasn’t explicitly stated previously. Since many listed buildings have already been identified partly for their group value, it is unclear how this provision will play out in practice. It is conceivable that this might result in buildings which make a positive contribution to a conservation area being more likely to be listed but a noticeable increase in buildings being listed on this basis is not anticipated.
Change from 1840 cut-off date to 1850Previously, 1840 was established as a key date in terms of identifying whether buildings were suitable for listing; however, in the revised document, the second tier of buildings now includes those from 1700 to 1850 (rather than 1840) which, if they retain a significant proportion of original fabric, are likely to be of special interest, “though some selection is necessary” (para. 18). As a result, the third tier of buildings has shifted to include those from 1850 to 1945.
Change in treatment of post-1945 buildingsThe revised document introduces a small change in how post-1945 buildings are treated: previously, “particularly careful selection” was required for buildings of this era. This has been downgraded to “careful selection”. While the use of the word “particularly” was never defined through case law, the removal perhaps reflects a greater acceptance that the listing of post-1945 buildings is no longer treated as unusual.
Buildings of less than 30 years in ageThe revised document reiterates that listing buildings of less than 30 years in age is generally only considered appropriate if they demonstrate “outstanding quality”. The previous principles required such buildings to be under threat before they would be considered for listing but this provision has been removed. This may well increase the number of such youthful buildings being assessed and listed. The debates regarding No. 1 Poultry may have been the catalyst for this change, revolving as they did around the extent of threat.
Benchmark for date of buildingsConnected to the above point, but of wider interest, a useful definition is now also provided to identify when the Secretary of State considers a building to date from; this has been established as the date from which the ground was first broken (para. 19). This reflects established practice (e.g. the Anglican Cathedral in Liverpool took so long to build it was listed before the west end was complete).
Impact of state of repair on decision to listThe revised document retains a principle on a building’s state of repair not usually being relevant to the decision to list, as was already the case in the previous version of the document. However, the revised document adds that “loss of original fabric will however be a relevant consideration when considering special interest” (para. 23). This reflects current practice in that the poor condition of a feature, such as a staircase, is not a consideration for listing but the total loss of the feature would be.
Certificates of Immunity and Building Preservation Notice The revised document adds in information on Certificates of Immunity (CoI) from listing, setting out the Secretary of State’s policy not to accept applications for a subsequent CoI for a building if the current one remains valid for two years or longer, and then only if there is clear justification for doing so (para. 25). It also references Building Preservation Notice (BPN) and identifies that the procedure requires local planning authorities to apply to the Secretary of State through Historic England for the building to be added to the statutory list, if a BPN is served (para. 27).
Clarification on Historic England’s listing selection guidesThe revised document clarifies that Historic England’s listing selection guides, while useful for assessment purposes, do not form part of the Secretary of State’s policy or guidance on listing. This is significant in that when seeking a review of a listing decision, the Secretary of State’s decision cannot be challenged on the basis that it deviated from Historic England’s Selection Guides.