By Tony Allen LMRTPI, Notary Public

 

I discussed the context for this Guidance, published at the same time as PPS5, in my previous Article. Whereas the old PPG15 provided policy and guidance in a single document, the two are now split, with this document being the work of English Heritage (endorsed by DCLG and DCMS), whilst PPS5 is written by DCLG. As with PPS5, the Guidance also covers the topics previously dealt with in PPG16 – Archaeology and Monuments.

The first paragraph of the Guidance says:

“The purpose of this guide is to assist local authorities, owners, applicants and other interested parties in implementing Planning Policy Statement 5 (Planning for the Historic Environment) and to help in the interpretation of policies within the PPS.”

Paragraph 20 of the Guidance makes the following important statement:

“Nothing in the PPS changes the existing legal framework for the designation of scheduled monuments, listed buildings, conservation areas, registered parks and gardens or protected wrecks. Existing law also sets out the basis on which scheduled monument consent, conservation area consent or licences to deal with protected wrecks may be required. Again, nothing in the PPS changes those requirements and the interpretation of the words and phrases used. Whilst PPS5 covers planning decisions concerning scheduled monuments, it does not cover scheduled monument consent. The Government’s policies on the granting of scheduled monument consent are published by DCMS.”

The Guidance then sets out a list of “Designated Assets”, with the statutory or other basis for the designation of each, based on the definition of Designated Heritage Asset in PPS5. Having done so, however, the Guidance is then largely written by reference to “Heritage Asset”. Only paragraphs 85 to 99 and 113 to 124 refer specifically to “Designated” Assets, by way of exposition of Policy HE9 (and it is not clear from the text where the specific coverage of HE9 – related guidance is intended to end) and HE10.

The key to this ambiguity is perhaps to be found in paragraph 10:

“A key feature of the PPS is its holistic approach to the historic environment. The elements of the historic environment that are worthy of consideration in planning matters are called ‘heritage assets’. This term embraces all manner of features, including: buildings, parks and gardens, standing, buried and submerged remains, areas, sites and landscapes, whether designated or not and whether or not capable of designation.” (my underlining)

In the previous article I referred to “an unspecified and random category of Heritage Assets…” The difficult question is how (and when) those assets which fall outside designation or the possibility of designation, are to be identified, and the extent of protection to be extended to them. By way of example, paragraph 70 discusses “setting”. The statutory basis for this concept as it applies to listed buildings is well understood, and appears to form the basis of the discussion of Policy HE10 in the Guidance (“Additional policy principles guiding the consideration of applications for development affecting the setting of a designated heritage asset”), but the second sentence of the following paragraph then reads:

“All heritage assets have a setting, irrespective of the form in which they survive and whether they are designated or not.”

Is the Guidance therefore, in effect extending the concept of setting as a material consideration in planning decisions to all heritage assets? For an answer, see paragraph 110:

“In accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004, the determination of planning applications must be made in accordance with the development plan unless material considerations indicate otherwise. The PPS policies are material considerations to planning applications that affect heritage assets, either by proposing direct change to them or by development within their setting.”

This reinforces the wording of the first sentence of Policy HE8 of PPS5 (which is specific to non-designated heritage assets):

“The effect of an application on the significance of such a heritage asset or its setting is a material consideration in determining the application.” (my underlining)

I will discuss the concept of setting in more detail in my forthcoming book, but this may mean, for Developers, that they will need to consider the possible impact of a scheme on the setting of any building, monument, site, place, area or landscape which has been identified as a Heritage Asset, and others which might be identified as such whilst a planning, listed building consent or conservation area consent application is being considered.

As paragraph 123 of the Guidance states, English Heritage is preparing detailed guidance on understanding the setting of heritage assets and assessing the impact of any changes affecting them and on how to assess heritage significance within views.

3.         The significance of “significance”

In this document, and in PPS5, the “Significance” of a heritage asset has become the key to planning decisions which affect the asset or its setting. “Significance” is defined in PPS5, as discussed in the previous Article.

The Guidance refers in paragraph 11 to “heritage significance”, but the potential breadth of this concept is illustrated by references to assets possibly having “…cultural or faith interest to a particular community…” (paragraph 60), and compare the stated need for “…objective criteria…” for the identification at a local level of heritage assets to be included on a local list (paragraph 8).

Detailed advice on assessing Significance is set out at paragraphs 54 to 60. There is much emphasis on the work which an applicant for planning permission, listed building or conservation area consent, will need to do to identify and assess the significance of historic assets which are or may be affected by the scheme; see e.g. the reference to paragraph 60 above, which continues by recommending consultation with the particular community on the value of local assets.

The tests for significance are set out as follows:

“55. Understanding the nature of the significance is important as it is vital to understanding the best means of conservation. A modern building of high architectural interest will have quite different sensitivities from an archaeological site where the interest arises from the possibility of human remains being buried there.

56. Understanding the extent of the fabric that holds that interest is also important because this can, among other things, lead to better understanding of how adaptable the asset may be and therefore improve viability and the prospects for long term conservation.

57. Understanding the level of importance of that interest is important as it provides the essential guide to how protectively the policies should be applied. This is fundamental to decision-making where there is unavoidable conflict with other planning objectives.”

To these should be added the assessment of the impact of development on the setting of heritage assets discussed above, and at paragraphs 113 to 124 of the Guidance.

4.         Heritage Assets and sustainability

PPS5 Policy HE1 “Heritage assets and climate change” is amplified at paragraphs 21 to 25 of the Guidance, and includes the optimistic statement:

“The historic environment can inform and inspire the best modern, sustainable development.” 

Whilst it is undoubtedly the case that the retention of, say, a listed building, or of buildings in a Conservation Area, can inspire the quality of new development in the vicinity, it is also the case that the retention of unlisted buildings deemed to have some local significance can frustrate and delay good new development schemes.

5.         Policy making for Heritage Assets

Part 4 of the Guidance provides detailed advice for regional and local planning authorities on the compilation and assessment of the evidence needed to inform the plan-making process.

Paragraph 27 sets out detailed background reading required to ensure that the plan under preparation does justice to the heritage assets which may be affected by it, and the additional work which may be needed if those sources do not provide sufficient information. In particular, they should consult their Historic Environment Record, which paragraph 28 assumes that all local planning authorities will have, although the duty to create such records was set out in the abandoned Heritage Protection Bill (clause 210), consider local listing (with public consultation) and appoint outside consultants to supplement existing information if they feel that “…the evidence base is weak…”

The following paragraphs advise on the use of the evidence in drafting plans regionally and locally, on the protection of Historic Landscapes, on the use of Article 4 Directions and on monitoring.

“Heritage assets may be affected by direct physical change or by change in their setting. Being able to properly assess the nature, extent and importance of the significance of a heritage asset and the contribution of its setting is very important to an applicant in order to conceive of and design a successful development and to the local planning authority in order to make decisions in line with the objectives of the PPS and the development plan.”

The emphases are therefore on significance and setting, which are discussed above.

Within this part of the Guidance, applicants and their advisers preparing listed building consent and other applications will need to pay particular attention to paragraphs 68 and 69, which expand on and reinforce Policy HE6 of the PPS, set out above.

Paragraph 71 states:

“The description of significance and the accompanying assessment of impact on that significance provided with the application ought to provide the information necessary to enable the local planning authority to make a decision on the application in good time. An application should not be validated unless it contains sufficient information to assess the impacts (HE6.3).” (my underlining)

Information submitted with the application may not, however, be the end of the story; the Guidance encourages local planning authorities to take account of consultation responses, information gathered from site visits and to obtain expert advice. Indeed paragraph 73 interprets the PPS as requiring authorities to:

“… use expert advice to inform their decision-making where the need to understand the particular significance of a heritage asset and any proposed impact demands it.”

These two extracts illustrate the ambiguity in the Guidance between references to designated and other heritage assets. They come from text which expands on Policy HE7 of the PPS, and thus relates to all heritage assets.

7.         Heritage Partnership Agreements (paragraph 67)

This paragraph reflects existing statutory and non-statutory practices – agreements under section 17 of the 1979 Act relating to the management of Monuments, and agreements between owners of large listed buildings or groups of buildings as to their management in a listed building context. As this paragraph says, these agreements can save time for all concerned by limiting the range of works requiring listed building consent. Work on preparation of a Heritage Partnership Agreement will now need to be informed by a thorough understanding of “significance” in relation to the buildings and land involved (an Agreement could relate to a park, battlefield or other heritage asset as well as to a listed building or monument).

8.         Detailed Guidance on works to Heritage Assets

Part 6 of the Guidance provides detailed advice on works to or affecting heritage assets, by way of illustration of the policies of PPS5, but is specific to applications for listed building or conservation area consent (see Paragraph 142). It mentions the possibility of conflict with the requirements of other legislation (e.g. Building Regulations or the Disability Discrimination Act), and says:

“Local planning authorities are encouraged to consider imaginative ways of avoiding such conflict. Where conflict is unavoidable, such regimes generally allow for some flexibility so that a balance can be struck.” (Paragraph 144)

It also deals with the need or otherwise for listed building consent for minor repairs (an area of frequent uncertainty when advising owners) in the following terms:

“ With the exception of repairs to scheduled monuments, which will almost always need consent, minor repairs are unlikely to require planning permission or listed building consent (where relevant) if the works are carried out using the same materials and techniques and they do not affect the significance of the asset. The local planning authority will be able to advise.” (Paragraph 147) (my underlining)

In the past, the approach of many local planning officers has been “if in doubt” to recommend an application for listed building consent when they have been consulted in respect of proposed “minor works”. It is now clear that it will be necessary to produce evidence of little or no impact on significance if such a response is to be avoided.

The remainder of the Guidance is covers similar ground to PPG15 Annex C, but less dogmatically and generally in somewhat less detail

9.         Summary

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