Martin Goodall, consultant solicitor with Keystone Law, London, has specialised in planning law for more than 30 years. He is a member of the Law Society’s Planning Panel and is a Legal Associate of the Royal Town Planning Institute. Jonathan Thompson is the heritage adviser at the CLA. He sits on the Historic Environment Forum and the National Heritage Protection Plan Advisory Board, co-chairs the Heritage Alliance’s Rural Heritage Group, and sat on the Penfold Review Sounding Board.

Is the current Listed Building Consent system broadly working well?

Martin Goodall Yes, on balance, although there are misunderstandings by owners and planning officers as to what requires Listed Building Consent.

Jonathan Thompson No. The system should make people think that sympathetic change, which allows buildings to be used and valued, will be easy, but undesirable change difficult. It is not achieving this.

Will provisions in the Enterprise and Regulatory Reform Bill (see box) improve matters?

M: A welcome, long-awaited reform is the introduction of certificates of lawfulness. This will enable [people] to ascertain whether proposed works for the alteration or extension of a listed building in England would require Listed Building Consent.But I am sceptical as to how many Heritage Partnership Agreements will be made and suspect few local authorities will make Local Listed Building Consent Orders. Also, new or amended entries in the statutory list of buildings of special architectural or historic interest [may] provide that a particular object or structure fixed to the building, or within the curtilage, is not to be treated as part of the building for the purposes of the Bill, or that any part or feature of the building is not of special architect-ural or historic interest. However, this will not apply to existing entries in the register unless they are amended, so it’s of limited effect.

J: They are welcome, as far as they go. But they will not achieve the transformational change needed. For example, improving new list descriptions is good, but won’t help much with the 380,000 existing listings. Heritage Partnership Agreements are expensive to draw up and irrelevant for one-off changes-which includes most proposals.

That local lists of Listed Building Consent-free permitted works could be drawn up is welcome, but how many local authorities will have the resources to use them? Research in 2003 revealed scandalously inadequate staffing and it’s now even worse-and being cut by about 10% a year. You therefore often have to be extremely persistent to get consent, especially (counter-intuitively) for minor change. Many owners give up, and the building decays.

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What other proposals would you have liked to see this Bill contain?

M: Many owners believe prohibition on altering a listed building without consent applies only to the exterior or to features mentioned in the listing description. With Grade II-listed buildings, the law could have been brought into line with this widely held (but not unreasonable) misconception. Also, at least a third and up to half of all Grade II-listed buildings could reasonably be de-listed.

J: It could have increased heritage protection greatly. More than half of applications are for work that has no adverse impact, or would not have after minor amendment. As the Penfold Review set up by the last government said, these applications can safely be streamlined. Firstly, ‘national class consents’ could define common works such as rewiring, central heating and re-pointing which, if detailed conditions were followed, would not need consent. Secondly, a streamlined process confined to works with no adverse effect, internet-based so that every aspect is visible to anyone, and with a ‘call-in’ procedure, could deal safely with a high proportion of applications. Thirdly, we need a guarantee of local-authority conservation-service standards; resource savings from streamlining no-harm applications could allow this to be put in place.

Is the system skewed in favour of preservation as opposed to sympathetic change?

M: The attitudes of individual conservation officers vary considerably. Some are reasonably flexible;
others take a completely negative approach. Another problem is that unauthorised works to a listed building carried out at any time from January 1, 1969, onwards are potentially open to enforcement and this can be difficult for the innocent purchaser of a listed building who may have no means of finding out whether any unauthorised works have been carried out as long ago as that.

J: In practice, too often the message is still ‘you must look after listed buildings, but we won’t help, we will make it costly and difficult, and we will obstruct any change that might give them a more viable future’.

Is enforcement of unauthorised works properly policed?

M: Many unauthorised alterations to listed buildings (especially interior ones) go unnoticed and unpoliced and, in the case of Grade II-listed buildings at least, this arguably causes no real harm.

J: No. Also enforcement is not usually aimed at the ‘hard cases’, because they are elusive or have sharp lawyers, but at easier targets who have done little harm, but provide a good ‘clear-up rate’.

Are people put off owning or caring for a listed building because of the current planning system?

M: No one need be deterred, provided they understand what is involved. Most of the repairs needed to a listed building arise from normal maintenance requirements for any old building rather than because the building is listed.

J: Yes, and almost all the old advantages of listing-VAT relief for alterations, free advice, grants-have gone. Even so, few owners would have a big problem with regulation if it worked and was fair and proportionate. We should change it so that it is.

Listed buildings and the Enterprise and Regulatory Reform Bill

The Bill will make some significant changes to heritage protection including:

* Merging conservation-area consent back into the mainstream planning system

* Simplifying the application process for a Certificate of Immunity from listing

* Promoting a clearer definition of the area of interest in a listed building, and potentially allowing parts of the building to be excluded from the listing

* Introducing Listed Building Consent Orders and Local Listed Building Consent Orders, which describe the type of work that will not need permission at either national or local level

* Introducing Heritage Partnership Agreements between the local authority and the listed-building owner (as well as other relevant parties). These agreements will grant Listed Building Consent for the alteration or extension of a listed property during a period of time, and will specify any terms on which that consent is given, and any conditions attached to it.

* Introducing a Certificate of Lawfulness of Proposed Works to listed buildings, which will give owners formal confirmation that Listed Building Consent is not required for proposed works because they don’t affect the building’s character.