Advice & Guidance

Understanding Building Legislation

In England and Wales, the legal requirements affecting listed buildings and conservation areas are currently set out in the Planning (Listed Buildings and Conservation Areas) Act 1990. This act is supplemented by various government guidance documents including the recently published NPPF. 

Policy Statement 5: Planning for the Historic Environment (PPS5) is still used as guidance. PPS5 took over from Planning Policy Guidance Notes 15 & 16 and is supported by a Practice Guide produced by English Heritage.

Together these documents guide local planning authorities in their decision-making and are used to interpret planning law. Applicants are also required to take into account the conservation policies set down by the local planning authority as well as more general planning issues. Many produce extremely useful guidance on their conservation areas and listed buildings.

Richmond Castle Scheduled Ancient Monuments

The first piece of what we might now call heritage legislation was enacted in 1882. This was the Ancient Monuments Protection Act and introduced the idea of scheduled ancient monuments, which are still a part of conservation law today. The first batch of scheduled ancient monuments consisted of a few, mainly pre-historic sites that were taken into state care with the owner's consent and given statutory protection. There are now around 30,000 such sites, which are currently protected under the Ancient Monuments and Archaeological Areas Act 1979.

All works to these sites (not just alterations) require scheduled monument consent (SMC). It is a criminal offence to damage a scheduled monument either deliberately, recklessly or by carrying out work without the appropriate consent and transgressing this law can lead to a criminal conviction and a fine. Only sites of ‘national importance' may be scheduled, and then only if scheduling is considered to be the best means of protecting them. Historic buildings and standing structures, which are usable or could be made usable, are more likely to be listed. Buildings in ecclesiastical use are not normally scheduled. and introduced the idea of scheduled ancient monuments, which are still a part of conservation law today. The first batch of scheduled ancient monuments consisted of a few, mainly pre-historic sites that were taken into state care with the owner's consent and given statutory protection. There are now around 30,000 such sites, which are currently protected under the

Listed Buildings

In 1932, local authorities were given the power to protect historic buildings or groups of buildings for the first time through the Town and Country Planning Act although the national system for registering or ‘listing' buildings did not appear until the act was revised in 1944. A ‘listed building' is therefore one that has been entered onto the statutory list of buildings of ‘special architectural or historic interest' compiled by the Secretary of State for Culture, Media and Sport. Listed buildings are given a ‘Grade' to show their relative importance:

  • Grade I buildings are those of exceptional interest.
  • Grade II* buildings are particularly important buildings of more than special interest.
  • Grade II buildings are of special interest, warranting every effort to preserve them.

There are currently around 370,000 list entries of which the majority (over 92%) are listed at Grade II.

De La Warr Pavilion

There are a number of factors that affect the decision about whether a building should be protected by listing or not. When assessing buildings the main criteria used by English Heritage are as follows:

  • Architectural interest - issues such as architectural design, decoration and craftsmanship.
  • Historic interest - connections with the nation's social, economic, cultural or military history.
  • Close historical association - connections with nationally important people or events.
  • Group value - relevant where buildings comprise an important architectural or historic unity or are a fine example of planning such as squares, terraces and model villages.

The older and rarer a building is, the more likely it is to be listed. All buildings built before 1700, which survive in anything like their original condition, are therefore listed, as are most built between 1700 and 1840. After that date, the increased number of buildings erected and the much larger numbers that have survived, mean that the selection criteria are applied more strictly. As a result, buildings built after 1945 have to be exceptionally important to be considered for listing. Generally speaking, buildings less than 30 years old will not be considered for listing unless they are of outstanding quality and under threat. Details of the principles used to make decisions about the listing of places of worship can be found in the Listing Selection Guide for Places of Worship published by English Heritage.

The legislation that protects listed buildings is designed to control change rather than to prevent it, since almost all buildings need to be adapted to accommodate new requirements from time to time. However, it is worth remembering that it is a criminal offence to demolish or to alter any aspect of a listed building in a manner that affects its character without listed building consent (LBC). In theory, like-for-like repairs do not require consent, since they do not affect the building's character. However, most repairs do entail some degree of alteration, so it is always best to consult the local planning authority before commencing any work.

Remember that listing may also cover an ancillary structure within the principal building's curtilage. It is not possible to give a precise legal definition of curtilage although it is generally understood to be the area of land associated with a building and necessary to the function or enjoyment of that building i.e. a churchyard or garden.

Conservation Areas

Conservation and heritage protection tend to focus on buildings - particularly the grander and more important ones. However, it should not be forgotten that many of the places we consider to be special are the product of a number of inter-relating factors such as the buildings themselves, the spaces between them, hard and soft landscaping etc. Although the principal form of protection in the historic environment is through the listing of buildings and the scheduling of monuments, the designation of ‘conservation areas', which was introduced in the Civic Amenities Act 1967, also brings some limited protection to unlisted buildings. There are currently around 10,000 conservation areas in the UK. In most cases, historic buildings or townscapes form the focus of the conservation area, but often they include gardens and landscape structures as well.

Ecclesiastical Exemption

Until quite recently all churches and chapels in England and Wales were exempt from listed building and conservation area controls. However, the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994 restricted the ‘ecclesiastical exemption', as it is known, to churches and chapels of the six denominations operating an acceptable internal system of control, provided that the building remains in use as a place of worship. An updated and amended verion of the Order came into force in England in October 2010.

The exempt denominations are the Church of England, the Church in Wales (Yr Eglwys yng Nghymru), the Methodist Church, the Roman Catholic Church, the United Reformed Church and those Baptist churches where the Baptist Union acts in the capacity of trustee. Alterations to places of worship belonging to these denominations therefore fall outside the system of secular listed building control although they are still subject to planning controls.

Bevis Marks Synagogue Of these bodies, the Church of England has the largest number of listed buildings, many of which are designated Grade I or Grade II*. Its listed building procedures are set out in the Faculty Jurisdiction Rules 2000. For Anglican churches, it is necessary to apply for a faculty for any works of repair or alteration.

Such faculties are determined by the Chancellor of the respective Diocese after consultation with the Diocesan Advisory Committee and additionally with English Heritage, the local authority and the relevant national amenity societies in the case of listed churches.

A similar process of control exists for places of worship belonging to the other exempt denominations.

 

If you belong to an exempt denomination, you should therefore seek advice about the rules and procedures that apply to you.

Works to listed places of worship that do not belong to an exempt denomination remain subject to the normal listed building consent procedures.

Alvechurch St LaurencePlanning Permission

Listed Building Consent or the equivalents under the ecclesiastical exemption are required for work affecting the fabric and character of listed buildings and their curtilage structures.

However, this does not override the obligation to obtain planning permission where works constitute development. Development might include alterations such as building an extension or proposing a change of use. For example, a proposal to extend a listed synagogue would require listed building consent for the physical alterations as well as planning permission for the development of the building.

 

On the other hand, a proposal to reorder the sanctuary of a listed Roman Catholic church would require a faculty but not listed building consent or planning permission.

Building Regulations

Places of worship are subject to building regulations in the same way as other buildings although there is recognition that some flexibility is required when dealing with historic structures. Since the requirements of the Building Regulations are written as a statement of performance rather than prescriptive solutions, conflict does not usually occur at this level. It is in the application of the Approved Documents, which set out the ways in which the requirements may be met, that conflict sometimes develops. For instance, the Building Regulations require ‘reasonable standards of health and safety'. However most Building Control Officers will usually accept that when work is being done to an historic building significant improvements may not always be achievable, although any changes should not result in a less safe environment.

There is a distinction to be made between issues that are potentially life-threatening and ones that are more concerned with comfort or psychological well-being. Fire protection is clearly critical and much work has been done to find ways of meeting the performance requirements of Approved Document Part B (Fire Safety) without compromising what we value in our historic buildings. For other matters, there is perhaps more scope for flexibility. For example if the solutions prescribed in the Approved Documents were applied rigidly with regard to matters such as the rise of a stair and the height of its landing handrails, the historical integrity of the building could be compromised. It is therefore sensible to take advice from your architect or building surveyor, as they will be able to find solutions appropriate to your building and your needs.

Further information regarding Building Regulations, including an explanatory booklet, can be found on the website of the Department of Communities and Local Government (CLG).

Disability Discrimination Act

The Disability Discrimination Act (DDA) is intended to facilitate dignified independent access to services. To meet the requirements of the DDA, organisations or individuals who provide a service (including faith groups) have to take reasonable steps to attempt to remove any physical features that prevent access. If the service provider cannot remove the barrier then they must investigate whether it can be altered. If alterations are found to be unreasonable, then some means of avoiding the feature should be provided. The last resort is to provide a reasonable alternative method of making the service available to disabled people.

Uneven ancient flooring can make inclusive access difficult

Although the Disability Rights Commission produced a Code of Practice there remains considerable doubt as to what is meant by the term ‘reasonable'. However, the importance of historic fabric is a relevant factor. As the DDA is secondary legislation, proposals to alter buildings are still subject to the primary legislation of statutory protection afforded to historic structures. Therefore, as with any proposal to alter a listed building or scheduled monument, you must consider whether the planned alteration adversely affects the special historic, cultural or architectural character of the building; whether the proposal is ‘reversible' and whether the potential alteration enhances the historic environment and is of comparable quality.

Future Changes

In spring 2007, the Department for Culture, Media and Sport (DCMS) issued its White Paper on heritage protection (Heritage Protection for the 21st Century). The proposals included the merging of listing, scheduling and landscape registering regimes to form a single national Register of Historic Buildings and Sites. Under the new bill Historic Asset Consent would be required for alterations to any historic site included in the Register with schemes assessed by the local planning authority.

To the dismay of many of the heritage bodies this legislation is now on hold and it is not known when it may return to the parliamentary timetable.  However some changes to make the designation process more open can be achieved without primary legislation and are already being implemented.

If you would like to learn more about the heritage protection review and about how and why buildings are listed, you will find useful information and guidance on the English Heritage website.

© SPAB 2011