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Listed Buildings & Curtilage

Sun, 01 Apr 2018 21:42:06 GMT

Historic England publish new Advice Note

Working out the curtilage and its extent has often sent people into something of a spin. It can be challenging to get to the bottom of how to interpret the law which provides that buildings and other structures pre-dating July 1948 contained within the curtilage of a listed building should be afforded the same protection as the listed building itself.

Historic England have issued this new advice note which also provides hypothetical examples to assist in working through assessments for domestic, commercial, industrial and farm applications. It is based on the current legislative provision in the Planning (Listed Buildings and Conservation Areas) Act 1990 (s1(5)) and consideration of various listed buildings and curtilage in legal cases.

Full version is currently available at https://historicengland.org.uk/advice/latest-guidance/#Section1Text

Energy Performance Certificates, Listed Buildings & Conservation Areas

Sun, 01 Apr 2018 00:00:00 GMT

The Department of Communities & Local Government (DCLG) have updated guidance around the matter of whether listed buildings and buildings in conservation areas might be exempt from requiring an Energy Performance Certificate (EPC) when rented or sold. The requirement to provide an EPC is directly linked to the Minimum Energy Efficiency Standards (MEES) and comes into effect on 1 April 2018.

Therefore, generally speaking, as of today any sale or new letting of a property must either have a minimum EPC rating of E (this is set to extend to existing lets with effect from 1 April 2020) or have an applicable exemption from the requirement to meet the MEES standard.

I don’t intend to go into any depth here but rather just look at the exemption issues for listed buildings and buildings in conservation areas.

Essentially, where a residential building is exempt from the requirement to have an EPC (being rented out or sold) then this minimum E rating standard does not apply. For applicable listed buildings and buildings in conservation areas, this exemption has been fundamental, as many of them remain unable to be converted to meet the standard. As such, an exemption from the MEES standard is particularly important as it allows owners to sell or landlords to continue to rent out these properties.

Government guidance says that buildings protected as part of the designated environment (conservation areas) or because of their special architectural or historical merit (listed buildings) are exempt from the requirement to obtain an EPC "insofar as compliance with minimum energy performance requirements would unacceptably alter their character or appearance". The guidance goes on to say that to comply with minimum energy performance requirements, many of the recommendations in an EPC report, such as double glazing, new doors and windows, external wall insulation and external boiler flues, would likely result in unacceptable alterations in a majority of historic buildings.

It is accepted that the recommendations report containing the EPC may recommend a mix of recommendations, some of which may adversely impact upon the building and others which may not. It seems that owners will be responsible for taking a view, on a case by case basis, as to whether this would be the case for their building(s). Where there is any doubt as to whether works would unacceptably alter the character or appearance of a building, owners are encouraged to get advice from their Council’s conservation officer.

However, given the lack of Council resources, it may be more appropriate to employ a suitably qualified heritage professional (IHBC or similar) to assess the building and provide sufficient evidence for exemption, where applicable.

I’m sure that there will be more guidance and advice to follow but I guess we shall see how things pan out.

Consultation on the DRAFT revised text of the National Planning Policy Framework.

Wed, 14 Mar 2018 00:00:00 GMT

Consultation Closes: 1 May 2018

The draft revised National Planning Policy Framework (NPPF) incorporates a number of policy proposals previously consulted on in the Housing White Paper and the Planning for the Right Homes in the Right Places consultation.

As it stands, the draft revision of the NPPF appears to keep the existing heritage policy largely intact despite a little fiddling with text here and there but does include the moving of paragraphs and the addition of some new headings. There are a couple of notable changes however as follows.

What was paragraph 132 (now paragraph 189 in the proposed document) now includes additional text confirming that when considering the impact of development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation ‘irrespective of the degree of potential harm to its significance’. The proposed document also requires that any harm, even if it is ‘less than substantial’, should be given ‘great weight’ in the decision-making process.

This seems to echo and respond to the various Court judgments (notably the Barnwell Manor Wind Energy Ltd. case) and better aligns the NPPF with other statute and case law regarding listed buildings and conservation areas. Maybe this will provide extra traction for decision makers to consider sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 which have always required ‘special regard’ and ‘special attention’, respectively, to be paid to the desirability of preserving listed buildings and preserving or enhancing the character or appearance of conservation areas.

There is no longer the requirement of ‘securing its optimum viable use’ contained within the document, when dealing with less that substantial harm, which will go some way to negate the debates between developers and planning officers around what actually is the ‘optimum viable use’. Invariably there is often one party seeking the least harmful proposal for the heritage asset and the other seeing the better profit margin.

Unfortunately, there is no additional clarity around what is a genuine ‘public benefit’ when considering a proposal that involves less than substantial harm to a heritage assets. I guess these debates will continue unabated.

From a personal perspective, it would have been beneficial if the drafters had taken the opportunity to acknowledge and address the not insignificant range within ‘less than substantial’ harm which stretches from almost negligible harm to that which hits the threshold of ‘substantial’ harm.

Also, the definition of ‘historic environment’ has apparently been deleted from Annex 2 (Glossary) without explanation but perhaps the definition was considered to be too general?

So what lies ahead? Should the proposed draft be accepted, the main task will be to assimilate the newly numbered paragraphs and nuances of the altered texts.

Personally, I do not believe that these proposed text changes will introduce anything ground breaking for professional heritage practitioners who have and continue to work on the basis of doing the best for our heritage assets. I appreciate there are some great developers of heritage assets out there but maybe this will add some weight and traction to local authorities to encourage those other developers to come forward with more appropriate schemes.

In truth, we’ll see what comes forward in the final publication but I suspect that it will remain for those professional practitioners involved to wrestle with the existing and future issues.

Full details at: https://www.gov.uk/government/consultations/draft-revised-national-planning-policy-framework