Abolition of conservation area consent

Richard Harwood QC sets out how the Government has approached the abolition of conservation area consent, which will become effective in England from 1 October 2013.

Conservation area consent has been required for the demolition of almost all unlisted buildings within conservation areas. Since the vast majority of building demolition which required conservation area consent was part of a project involving new build which needed planning permission then there was always a strong case for incorporating demolition in conservation areas within planning control and abolishing conservation area consent.

The Department for Business, Innovation & Skills commissioned a review of non-planning consents from Adrian Penfold in 2009. Following an interim report in March 2010, the final Penfold report was published in July 2010. Penfold recommended the merger of conservation area consent with planning permission and the combining of listed building consent and scheduled monument consent into a single historic assets consent, determined by local authorities.

The Government Response to the Penfold Review of Non-Planning Consents was published in November 2010. Ministers agreed to merge conservation area consent with planning permission but shelved the wholesale change to designations in the draft Heritage Protection Bill.

Under the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 planning permission was not required for demolition which needed conservation area consent so there was not a duplication of consent at that point. However in March 2011 the Court of Appeal in R (SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [1] declared that most of the Demolition Direction, including that part, was unlawful. Consequently planning permission was also required, although this would usually be granted by the Town and Country Planning (General Permitted Development) Order 1995. The case for abolishing conservation area consent and merging that control with the need for planning permission became overwhelming.

In November 2011 the Government published a note on Implementation of the Penfold Review. It proposed to introduce four changes which have subsequently been included in the Enterprise and Regulatory Reform Act 2013: the definition of listed buildings, certificates of immunity, statutory management agreements and the abolition of conservation area consent. A further consultation paper was published by the Department of Culture, Media and Sport in July 2012 proposing the introduction of national and local class consents and lawful works certificates. [2]

Conservation area consent gave rise to immediate criminal liability, whereas breach of planning control does not, so a number of consequential changes have been required to maintain the standard of protection.

As a result of SAVE planning permission and conservation area consent is required for almost all demolition of unlisted buildings (except for walls) in conservation areas. Subject to article 4 directions and any Environmental Impact Assessment requirements that planning permission is granted by permitted development rights. The changes required in abolition were therefore:

• Repealing provisions on conservation area consent;
• Introducing into planning control the enforcement mechanisms, in particular immediate criminal liability, that applied to conservation area consent;
• Removing permitted development rights for demolition of unlisted buildings in conservation areas.

Sections 60 to 63 and schedules 16 and 17 of the Enterprise and Regulatory Reform Act 2013 make amendments to planning and historic environment legislation. These changes only apply in England, although some are being proposed the current heritage review which is progressing in Wales. The abolition of conservation area consent comes into force on 1st October 2013. [3]

It is then an ‘offence for a person to carry out or cause or permit to be carried out relevant demolition without the required planning permission’: proposed section 196A(1) of the Town and Country Planning Act 1990. Similarly is ‘an offence for a person to fail to comply with any condition or limitation subject to which planning permission for relevant demolition is granted’. [4] Relevant demolition defined as: [5]

“the demolition of a building that—

(a) is situated in a conservation area in England; and

(b) is not a building to which section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 does not apply by virtue of section 75 of that Act (listed buildings, certain ecclesiastical buildings, scheduled monuments and buildings described in a direction of the Secretary of State under that section).”

The health and safety defence in section 9 of the Listed Buildings Act is applied to this provision, so replicating the previous situation under conservation area consent: [6]

“It is a defence for a person accused of an offence under this section to prove the following matters—

(a) that the relevant demolition was urgently necessary in the interests of safety or health;

(b) that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter;

(c) that the relevant demolition was the minimum measure necessary; and

(d) that notice in writing of the relevant demolition was given to the local planning authority as soon as reasonably practicable.”

The offence is triable either way, with maximum sentences of 12 months imprisonment in the magistrates’ court, or 2 years’ imprisonment in the Crown Court, or a fine in either court. [7] Any financial benefit must be taken into account in sentencing [8] and a subsequent grant of permission will not affect liability for an offence which has occurred. [9]

As planning permission is was in any event required for such demolition, the local planning authority has the usual range of enforcement provisions available to it. English Heritage are given power to prosecute or seek a planning injunction in respect of relevant demolition. [10]

A new ground of appeal against an enforcement notice applies for relevant demolition which was urgently necessary in the interests of health and safety: [11]

“(2C) Where any breach of planning control constituted by the matters stated in the notice relates to relevant demolition (within the meaning of section 196D), an appeal may also be brought on the grounds that—

(a) the relevant demolition was urgently necessary in the interests of safety or health;

(b) it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter; and

(c) the relevant demolition was the minimum measure necessary.”

There would be no time limit for taking enforcement action against relevant demolition, mirroring the current unlimited time for acting against conservation area consent breaches, see the proposed section 171B(2A):

“There is no restriction on when enforcement action may be taken in relation to a breach of planning control in respect of relevant demolition (within the meaning of section 196D)”

For these provisions to be effective, permitted development rights for relevant demolition are removed from Part 31, Class A of the Town and Country Planning (General Permitted Development) Order 1995. [12] Some transitional provision has also been needed to allow relevant demolition to proceed under existing conservation area consents.

If a planning application is solely for relevant demolition then no fee is payable. [13]

Consequential amendments remove references to conservation area consent from other regulations. [14] Current conservation area consent applications will remain to be determined and the new provisions will not apply to them. [15] The position for extant conservation area consents is not entirely clear. The consequential provisions order says that the statutory amendments do not have effect in relation to pre-1st October 2013 conservation area consent applications. Whether that is intended to keep those consents in force such that an application for planning permission is not required, remains to be seen. It may be that the commencement order will also contain transitional provisions.

Richard Harwood QC  is a barrister at Thirty Nine Essex Street. This article is adapted from his books ‘Historic Environment Law’, published by the Institute of Art and Law and ‘Planning Enforcement’, published by Bloomsbury Professional.