The Government has announced the introduction of new permitted development (PD) rights in England to allow change of use from commercial, business and service uses (Class E) to a residential...
Conservation area and listed building issues
Planning proposals for developments situated in conservation areas are required to give consideration to the local heritage, architecture and environment. They will be scrutinised by a local conservation officer and it is worth contacting your local planning department before submitting an application to seek advice on what they will be looking for.
Permitted development rights are limited in conservation areas and, in some cases, they may be entirely removed by the local authority under an Article 4 direction. This initself does not mean that the proposal will be rejected but simply that it must receive consent.
Conservation area consent is required in addition to planning permission if demolition works are part of the proposed development.
Protection is afforded to all trees in a conservation area, including those not subject to a Tree Preservation Order (TPO). In such cases, and unless a limited exception applies (including size thresholds), residents are required to first serve a ‘Section 211 Notice’ on the local planning authority, giving six weeks advance notice of the proposed tree works. The authority then has six weeks from the date of the notice to decide whether to make a TPO on the subject tree.
If no decision is made within the notice period, or a TPO is declined, the tree works may proceed within two years. If the local authority decides to make a TPO then you cannot appeal (save for a judicial review) but you can appeal the subsequent refusal of consent for prohibited activities under the TPO as discussed above. A right to compensation may similarly arise.
Accordingly, should the local authority decide to make a TPO on your tree, it is important to seek expert legal advice as soon as possible to decide whether to pursue a judicially review, appeal a subsequent consent refusal, and/or seek compensation.
According to Historic England, the organisation responsible for publishing and maintaining the National Heritage List for England (NHLE), ‘a building is listed when it is of special architectural or historical interest, in the national context’.
There are estimated to be around half a million listed buildings in the UK, the majority of which were built between 1700 and 1940. To qualify for the list, the building must be of special interest assessed upon either of the following criteria:
- Architectural Interest – to be of special architectural interest a building must be of importance in its architectural design, decoration or craftsmanship; special interest may also apply to nationally important examples of particular building types and techniques (e.g. buildings displaying technological innovation or virtuosity) and significant plan forms; and/or
- Historic Interest – to be of special historic interest a building must illustrate important aspects of the nation’s social, economic, cultural, or military history and/or have close historical associations with nationally important people. There should normally be some quality of interest in the physical fabric of the building itself to justify the statutory protection afforded by listing.
You can find out whether a property is listed and under what criteria by searching the NHLE.
There are the statutory limitations and associated costs involved in carrying out improvements and alterations to a listed building. Listed status may affect the building’s land value and potentially cause comparatively higher running costs and insurance premiums. However, it may be possible to apply to remove a building’s listed status, although this is not an easy undertaking. Typically, only around 50% of applications are approved and involves a lengthy consultation and review process. However, if you feel that your building qualifies to be delisted, there are certain procedures you should follow.
The first step is to send your application for de-listing to Historic England. To support your case, you must provide evidence that proves the building does not meet the above criteria for listed buildings. This can include photographic evidence and surveys and you may need the services of a conservation specialist to present all the details for review. Historic England will then carry out an investigation and consultation with interested parties (including local authorities) before preparing a report to enable the Secretary of State to make the final decision.
A common reason for delisting is where the building has been destroyed and the potential for any repair or restoration has been eliminated. The repairs and restoration may extend to fabrics used, so the property must be beyond any help before it can be considered for delisting (and associated planning permission granted for a new one to be put in its place). In any event, the cause of the damage will always be investigated.
It might also be possible to argue that the original listing was not warranted. However, any application for delisting will only be considered in the first 28 days following publication of the list. It’s worth preparing your case before the publication date, as it can be a lengthy process.
Finally, there are certain circumstances under which a delisting application is unlikely to be considered. These include building works which are shortly to be undertaken; buildings which have had a notice of repairs served on them; and buildings which are the subject of an appeal against refusal of consent.
Successfully delisting a building can give owners great advantages. However, the process can take around five months and incur significant expense. Therefore, it is important to obtain early expert legal and conservation advice and support to ensure costs and delays are minimised.