Planning matters

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What is a listed building? A beginner’s guide
A recent Court of Appeal ruling has brought to the fore some of the misconceptions around what a listed building is and can be. The word ‘building’ itself can be misleading. In England, listed buildings are designated under section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“The Act”). In the case of Dill v The Secretary of State for Communities and Local Government, the appellant argued that Listed Building Consent was not required for the removal of two Grade II listed limestone piers with lead urns as they are not buildings. In the ruling, Lord Justice Hickinbottom stated that “…being on the list is determinative of the status of the subject matter as a listed building…”; furthermore, he also noted that the word ‘building’ is not defined in The Act but in section 336 of the Town and Country Planning Act 1990 which defines a building as: “’Building’ includes any structure or erection, any part of a building, as so defined, but does not include plant or machinery comprised within a building.” Some misconceptions about what a listed building is includes: 1. They are all buildings. Some listed buildings do not conform to what many of us would normally consider a ‘building’. Sculptures, cairns, water pumps, lamp-posts, telephone boxes, mileposts, the Cutty Sark (a suspended ship) and water troughs are all examples of listed buildings. Even a cobbled street, Conduit Hill in Rye, is a listed building as is the Grade II listed Victorian urinal illustrated above. This principle has been reiterated by the above-mentioned ruling. 2. They are old. Generally speaking, buildings over 30 years old are eligible for listing (although there are exceptions). This means that as well as parts of Hadrian’s Wall, more recent buildings, such as the famous case of the post-modernist No. 1 Poultry (designed in the 1980s and built in the 1990s), can also be listed. 3. Only the building mentioned in the name of the list entry is listed. Possibly, but this requires a case by case assessment as under The Act any object or structure fixed to the building is part of the listed building, unless specifically excluded in the list description; similarly, structures/objects within the curtilage may also be part of the listing. Fixtures and fittings are also a consideration. This is a particularly tricky area of listed building legislation and can require detailed research and expert input. Historic England has recently published advice on listed buildings and curtilage. 4. Only the exterior of the building is listed. The listing (and therefore the relevant statutory requirements for listed buildings) relates to the interior of a building, its exterior and sometimes its curtilage. Therefore, unlike planning permission, Listed Building Consent may be required for internal works. 5. The listed building is only what is described in the list description. Not correct. The list description was originally intended simply to help identify the building and sometimes only provides a brief description of the exterior; the interior may not even have been visited when it was assessed for listing (see point 4 above). Accordingly, the description is not a definitive account of the extent of the listed building or its special interest. An amendment made to The Act in 2013 allowed for new list entries to be more specific about where the special interest of the building lies and to define the extent of the listed building. However, currently Historic England applies this provision on a selective basis so this only applies to a relatively small number of listings at the moment. We discussed this in a recent blog on Leeds General Infirmary. Amy Davidson is a Senior Heritage Consultant based in Lichfields’ London office.

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A framework for housing

A framework for housing

Simon Coop, Lucy Benbow, Emily Broom & Abbie Connelly 10 Dec 2018
This is the second of two blogs that considers the implications of the new policy for development in Wales. Having previously considered the broad concepts of well-being and placemaking that are central to PPW10, this blog looks at specific policies relating to residential development. Although PPW10 includes policies relating to all development sectors, housing delivery represents a key focus. It is appropriate that this is so, given that housing completions in Wales have fallen from a long-term average of 9,100dpa since 1974 to an average of just 6,400dpa over the past 10 years. The average housing supply in Wales has similarly fallen from 4.36 years in 2013 to 2.89 years in 2017. Deliverability of housing sites Over recent years, a major problem in Wales has been the fact that many allocated housing sites have not been delivered. PPW10 seeks to respond to this through a more detailed assessment of deliverability and viability at the plan-making stage. An initial site viability assessment is to be undertaken by those promoting sites at the Candidate Sites stage, whilst a high-level plan-wide viability appraisal is to be undertaken by authorities at the Deposit stage. This approach does offer the potential to prevent the allocation of sites that are unlikely to be viable, but the ability to provide meaningful viability evidence depends on the availability of information regarding expected policy requirements, relating to affordable housing, CIL and s106 contributions. Such details will not normally be available at the Candidate Sites stage, casting doubt over the veracity of any such assessments. Where up-to-date development plan policies set out the community benefits that are expected from development, planning applications which comply with them “should be assumed to be viable and it should not be necessary for viability issues to be considered further” unless there are exceptional circumstances why this should be necessary. PPW10 sets out some examples of such circumstances, for example, the availability of further information on site costs, or economic changes. The reality is, however, that over the lifetime of a plan, these may not be “exceptional” and so the case for viability testing at planning application stage may remain strong. As another means by which to ensure sites deliver, PPW10 requires planning authorities to “identify where interventions may be required to deliver the housing supply”. Public intervention can be important in helping to bring some sites forward, although PPW10 does not offer any guidance as to the nature of such intervention, and this should not be seen as an excuse to allocate sites that are unlikely to come forward for some reason. In considering the quantum of land to identify for residential development, we welcome the fact that that PPW10 specifically refers to the importance of identifying an adequate supply to meet the identified level of housing need and “make a locally appropriate additional flexibility allowance for sites not coming forward” although some clarity on the scale of uplift that would be appropriate would have been helpful and reduced the scope for argument at LDP examination. In spite of the disapplication of paragraph 6.2 of TAN1 over the Summer, PPW10 maintains the requirement for local planning authorities to ensure that “adequate land is genuinely available or will become available to provide a five-year supply of housing”. It states that this will require sites to be: Free, or readily freed from planning, physical and ownership constraints; and Economically viable. For land to be regarded as “genuinely available” it must be in a Joint Housing Land Availability Study or, until a JHLAS is required to inform the first Annual Monitoring Report, in the housing trajectory agreed as part of an adopted development plan. The retention of the five-year land supply requirement is welcome and shows that housing supply will remain a material consideration in the determination of planning applications. However, reference to sites that “will become available” is likely to raise concerns regarding the likelihood of future delivery and the ability of particular sites to make a positive contribution to meeting local housing needs. In order to boost delivery, local planning authorities are required to “set a locally determined target for the delivery of small sites” and to work with developers to encourage the sub-division of large sites where this could help to speed up the delivery of homes. No guidance is provided as to how such targets might be set or what expectations might be established regarding the sub-division of sites, and there is a risk that overly restrictive targets might actually serve to undermine delivery. New settlements PPW10 states at paragraph 3.49 and 3.50 that “new settlements should only be proposed as part of a joint LDP, an SDP or the NDF. This is due to their significance and impacts extending beyond a single local authority. New settlements should only be proposed where such development would offer significant environmental, social, cultural and economic advantages over the expansion or regeneration of existing settlements”. Importantly, the new settlement threshold of “1,000 or more dwellings” that was stated in the draft PPW10 has been removed, as has all reference to major urban extensions. Whilst the support for large scale residential development is welcome, PPW10 still suggests that new settlements cannot be brought forward as part of a (non-joint) LDP and the fact that SPDs and joint LDPs are not currently forthcoming could continue to hinder the delivery of development. Moreover, the lack of reference to urban extensions is a matter of some concern as thee may be cases in which this would represent a more appropriate solution to the need for new housing growth. Nevertheless, the requirement for new settlements to be self-contained remains and there is greater clarity that they should be linked to high frequency public transport, essential social infrastructure, health care provision, retail and employment opportunities to ensure that new settlements do not become isolated housing estates. However, PPW10 has introduced the requirement for new settlements to be self-contained before occupation, which could have very serious implications for phased construction of development, to the extent that it may undermine delivery altogether. Previously developed land PPW10 sets out a search sequence for identifying sites to be allocated for housing in development plans that planning authorities must follow which: Starts with the re-use of previously developed and/or underutilised land within settlements; then Land on the edge of settlements; and then Greenfield land within or on the edge of settlements. Importantly however, paragraphs 3.51 and 3.52 do recognise that not all previously developed land is suitable for development and that the scale of issues associated with their development (e.g. contamination) may impact on the speed and viability of development. To this end, it is a welcome addition that PPW10 recognises that delivering regeneration sites can take longer and that local authorities should consider excluding them from housing supply so that the development plan requirement is not dependent on their delivery. At paragraph 4.2.16 PPW10 requires planning authorities, land owners and housebuilders to work together constructively to identify deliverable housing land in sustainable locations. However, the requirement to take a wider than local authority approach to the site search will create complexity in the absence of joint LDPs or SDPs. Green Belt/Wedge PPW10 states Green Belts should only be proposed as part of either a Joint LDP, SDP or NDF and Green Wedges should be proposed, and be subject to review, as part of the LDP process. The distinction between different plans is welcomed as it will ensure clarity regarding which plan to engage in order to promote development on suitable and sustainable sites that fall within existing Green designations. Conclusion It is evident that housing delivery is a key focus, as PPW 10 refers to the importance of identifying an adequate supply of housing to meet the identified level of housing need. Although, PPW pays more regard to the importance of ensuring that development is deliverable, it fails to provide clear policy interventions that will assist in addressing these issues – and crucially that will intervene where delivery is not happening. A failure of policy in respect of deliverability has resulted in much needed development not coming forward in many areas of Wales. PPW10 is headed in the right direction on this matter but in our view, should go further. This makes it even more important that TAN1 paragraph 6.2 is reinstated as soon as possible.

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