LL Cool RJ

This is about Robert Jenrick’s 23 October 2019 announcement of the ‘most ambitious heritage preservation campaign for 40 years‘.

Whilst we are in political lock-down, there is time to look at it in more detail and in particular at the concept of locally listed buildings, central to the campaign that Jenrick laid out as Communities Secretary, jointly with the Culture Secretary Nicky Morgan.

The following initiatives were announced, now of course all on pause:

⁃ “The new campaign will challenge every single local authority across England to draw up lists of buildings of significant historical and cultural value to an area, ensuring important local monuments are no longer left neglected and unloved.”

⁃ “Local people will be empowered to nominate heritage assets which are important to them and reflect their local area and identity, supported by a team of heritage experts, funded by £700,000 to help 10 English counties identify areas which need protecting.

⁃ “Historic England will launch a national campaign on local identity getting the country talking about what defines our heritage.

⁃ “The Communities Secretary is taking the direct step of contacting every parish council in England to make sure they are conserving the buildings which have played a remarkable role in their local history and need our support.

⁃ “In addition, a local heritage champion will be appointed to spearhead the campaign and encourage councils to increase local listings.”

I was at the announcement on 23 October, made at a Policy Exchange and Create Streets breakfast event (my, I had imposter syndrome). The transcript of his speech makes interesting reading, particularly the passages I have emboldened:

“I want to encourage local communities and heritage groups to get far more involved in identifying the historic buildings in their area…

… so they can be at the heart of the process of recognising, defining and protecting the buildings they truly value.

Because we know that, where buildings are on local or national heritage lists, they are often shielded from development.

And that, again, builds consent for development and builds better communities.

Until now, this has mostly been the domain of our local planning authorities.

But only 50% of planning authorities even have these lists, and where they do, they are often out of date or incomplete.

This isn’t good enough.

Protecting the historic environment must be a key function of the planning system.

All local planning authorities must play a far more proactive role in supporting local communities and heritage groups to identify and to protect more historic buildings.

In the 1980s, Michael Heseltine reinvigorated our national heritage lists. And now I want to complete that work and to do the same at the local level.

As a first step, I am announcing, what I think will be the most ambitious new heritage preservation campaign since Michael’s work 40 years ago.

We will start with 10 English counties and support them to complete their local lists and to bring forward more suggestions for the national statutory lists as well.

It will see local people coming forward to nominate the buildings and community assets they cherish – protecting them for future generations.

We’re backing this programme with £500,000 of government investment – giving counties the tools, funding and expertise they need to shift their approach to heritage and conservation up a gear.

To help us do this, we will appoint a National Heritage Advisor to support this vital work and to make sure that Government is actually delivering. I want to thank Marcus Binney, Simon Jenkins and the SAVE team for their input and inspiration for this initiative.

We hope this will help boost conservation efforts in these counties, enabling fresh engagement with local communities and heritage groups.

But our work doesn’t stop there.

We are also working with the Department for Culture and with Historic England on developing an entirely new heritage conservation programme. We are going to be supporting Historic England to develop a new process to enable faster community nominations of important heritage assets in the new Heritage Action Zones.”

If the new Government returns to this thinking, great care is needed in my view to manage the public’s expectations, in two ways:

1. What is local listing in the first place? It is not statutory listing.

2. What criteria are to be applied before buildings are locally listed.

Obviously, locally listed buildings do not qualify for the statutory protection that is given to listed buildings and conservation areas, either by way of additional consenting procedures or the specific policy tests to be met in relation to those statutorily designated heritage assets.

Locally listed buildings comprise non-designated heritage assets for the purposes of the NPPF.

The glossary to the NPPF defines “heritage asset” as follows:

A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).”

The NPPF policy test:

The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining [a planning] application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

Local plans and neighbourhood plans may well have more locally specific policies in relation to locally listed buildings.

The Government’s planning practice guidance explains how non-designated heritage assets (including locally listed buildings) are to be identified. I have emboldened the passages which are potentially in conflict with the approach identified by the Secretary of State:

There are a number of processes through which non-designated heritage assets may be identified, including the local and neighbourhood plan-making processes and conservation area appraisals and reviews. Irrespective of how they are identified, it is important that the decisions to identify them as non-designated heritage assets are based on sound evidence.

Plan-making bodies should make clear and up to date information on non-designated heritage assets accessible to the public to provide greater clarity and certainty for developers and decision-makers. This includes information on the criteria used to select non-designated heritage assets and information about the location of existing assets.

It is important that all non-designated heritage assets are clearly identified as such. In this context, it can be helpful if local planning authorities keep a local list of non-designated heritage assets, incorporating any such assets which are identified by neighbourhood planning bodies. (Advice on local lists can be found on Historic England’s website.) They should also ensure that up to date information about non-designated heritage assets is included in the local historic environment record.”

The content of Historic England’s advice on locally listed heritage assets is identified as “under review” (presumably linked to the Government’s announcement).

More detailed practical advice is contained within Local Heritage Listing: Historic England Advice Note 7 and within Civic Voice’s local heritage list guidance.

There is a lot of advice already out there! Is it just that the lack of local government resources over recent years has meant that too little attention has been given to local lists? Or is it that the Government is advocating a wholly new, “don’t listen to the experts, what buildings in your community do you cherish?” approach?

I do worry that Jenrick is in danger of overselling local listing by describing it as a process to seek to ensure that buildings are protected “for future generations” or that is likely to lead to them being “shielded from development”. Local listing is presently an objective but relatively light-touch process. The Government can’t have it both ways.

If the strategy is to let a million local listings bloom through a less objective, more community based process, plainly the policy tests to be passed, in relation to proposals that might affect them, need to be loosened: brownfield development will become even more difficult. Or if the strategy is to maintain the policy tests, surely we must ensure that that buildings are only locally listed on “sound evidence”?

And what do we think of the suggestion in the speech that this initiative “builds consent for development”?

Simon Ricketts, 9 November 2019

Personal views, et cetera

Heritage PS: Did you see that Yorkshire case, R (James Hall & Co) v Bradford MDC (HHJ Belcher, 1 November 2019), which confirmed that “negligible” or “minimal” harm still equates to “harm” for the purposes of the heritage tests in the NPPF? Thumbs up for the obviousness of the conclusion, to a question which has previously generated much learned London discussion. A bit of a “you can’t be negligibly or minimally pregnant” moment.

Law Altered On Altering Permissions: Court Of Appeal, Finney

Well I certainly tempted fate with the heading to my blog post A Helpful Case On The Scope Of Section 73 last November, which dealt with Sir Wyn Williams’ first instance ruling in Finney v Welsh Ministers.

Tear up that blog post. The ruling now been reversed by the Court of Appeal in a very short judgment (5 November 2019).

The point was a narrow one: can section 73 of the Town and Country Planning Act 1990 be used to obtain planning permission not just with conditions differing from those on the original permission but with a changed description of development?

Sir Wyn Williams found that the answer was “yes”, following a previous ruling of the High Court in R (Wet Finishing Works) Limited v Taunton Deane Borough Council (Singh J, 20 July 2017).

However, the Court of Appeal, in a straight-forward judgment by Lindblom LJ has found that the answer to the question is in fact “no”.

Lewison LJ:

“The question is one of statutory interpretation. Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. In other words the purpose of such an application is to avoid committing a breach of planning control of the second type referred to in section 171A. As circular 19/86 explained, its purpose is to give the developer “relief” against one or more conditions. On receipt of such an application section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached.”

Lewison LJ states that Wet Finishing Works was wrongly decided, the judge on that case not having been referred to another High Court judgment, R (Vue Entertainment) v City of York Council (Collins J, 18 January 2017).

In Vue Entertainment, Collins J had referred to another High Court ruling, R (Arrowcroft) v Coventry City Council (Sullivan J, 2001) as doing no more than making “the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied.”

By “the grant”, Lewison LJ understood Collins J to be referring to the “operative part” of the permission ie the description of the development itself.

So we now have a clear position: any section 73 application is constrained by the scope of the description of development on the existing planning permission.

Of course all is not lost – if a fresh application for planning permission is not to be made, it is back to the faff of having first having to amend the description of development by section 96A, if the change to the description of development in itself can be shown to be non material, before then making the section 73 application.

In response to submissions as to what might be the implications of his ruling, Lewison LJ said this:

Nor do I consider that the predicament for developers is as dire as Mr Hardy suggested. If a proposed change to permitted development is not a material one, then section 96A provides an available route. If, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required.”

Subject to the proposed change being within the scope of the description of development, the ruling does not change the principle that the relevant test for whether section 73 is available is whether the proposed change is less than a “fundamental alteration” to the approved scheme. The test set out by Sullivan J in Arrowcroft still applies:

“”… the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”

Lewison LJ’s ruling is likely to have practical implications for a number of current section 73 processes and will immediately influence the way that applicants may wish the description of development on a permission to be framed, so as not unnecessarily to constrain the potential for subsequent section 73 applications.

It may be legally correct, on the restricted wording of section 73 itself, and it may not be the end of the world, but what a shame now to lose the additional procedural flexibility that Sir Wyn Williams’ first instance judgment provided.

Simon Ricketts, 5 November 2019

Personal views, et cetera

Dial P For Purdah

Parliament will dissolve just after midnight on 6 November 2019, allowing the required 25 working days before a general election on 12 December. In accordance with the Prime Minister’s 28 October statement the new Parliament will first meet “before 23 December.”

So we will have a period of “purdah” from 6 November to 12 December. What does that mean in practice? Well because, elections come around so frequently these days, my 21 April 2017 blog post Parliament, Purdah, Planning remains pretty much up to date.

Central government

The blog post sets out the Cabinet Office guidance issued the day before start of the 2017 election period. Updated guidance will probably be issued in the next few days but I don’t expect major changes. It included the following:

During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money.”

It will be interesting to see if there will be a final spurt of decision letters being issued in the next couple of days (so far just the Secretary of State’s overturning on 31 October 2019 of the Mayor of London’s direction of refusal for proposals by Harrow School, awarding costs against the Mayor, ouch).

If a consultation is on-going at the time this guidance comes into effect, it should continue as normal. However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process.

As these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. That can be done, for example, by:

– prolonging the consultation period; and

– putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister).

Some consultations, for instance those aimed solely at professional groups, and that carry no publicity will not have the impact of those where a very public and wide-ranging consultation is required. Departments need, therefore, to take into account the circumstances of each consultation.”

Wouldn’t it have been nice if there were plenty of consultations underway!

As for public Bills, they automatically fall from the date of dissolution – so farewell the Environment Bill. It will be for the new Parliament to determine whether to reintroduce it and in what form.

Local government

So how does this period of purdah affect local government activity? For the purposes of the Government’s code of recommended practice on local government publicity this is a period of “heightened sensitivity”.

Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections and referendums […]. It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

In general, local authorities should not issue any publicity which seeks to influence voters…”

However, it is important to note that, as set out in the Local Government Association’s 2017 guidance Purdah: A short guide to publicity during the pre-election period, the election is not an excuse not to determine planning applications:

Local government sometimes views this period as a time when communications has to shut down completely. This is not the case, and the ordinary functions of councils should continue, but some restrictions do apply, by law, to all councillors and officers.”

Planning Inspectorate

During the purdah period, I do not expect the Planning Inspectorate to be issuing any decisions or reports in relation to controversial proposals which may be used for electoral advantage by any party.

Going to be nice and quiet isn’t it?

Simon Ricketts, 1 November 2019

Personal views, et cetera