HERITAGE PROTECTION REVIEW
Reforming the heritage consent regimes
Introduction
The Government recognises the need for change to the current system of heritage
consents. The recent Heritage Protection Review (HPR) undertaken by the
Department for Culture, Media and Sport (DCMS) has recommended the
unification of the current regimes of Listed Building Consent (LBC) and Scheduled
Monument Consent (SMC) into single heritage consent. At the same time,
research carried out for the Office of the Deputy Prime Minister (ODPM) has
suggested the need for reform to the current heritage consent system1 and
considered the potential for the unification of consent regimes, including LBC and
SMC, more generally2. English Heritage’s (EH) ‘Ripping up History’ campaign in
2003 identified a need to reform the SMC Class Consents regimes3. The results of
joint research carried out by the Department for Environment, Food and Rural
Affairs (DEFRA) and EH into the Conservation of Scheduled Monuments in
Cultivation (COSMIC) will hep inform the review of consents under the HPR by
providing a workable risk assessment model. This paper draws on these studies
and on early findings from the HPR pilot projects to consider the scope for changes
to current heritage consent regimes and highlight some issues for further
discussion.
This paper should be read in conjunction with a further three papers addressing
linked aspects of the HPR. These cover: reforming heritage designations; Heritage
Partnership Agreements; and local delivery.
The current system
Historic assets are currently subject to a range of separate control mechanisms. It
is not necessary to go into the detailed operation of individual controls in this
paper, but they can be broadly summarised as:

specific consents for specific works to designated assets, including LBC,
SMC and Conservation Area Consent (CAC);

designations that must be a material consideration in the wider planning
system, including works affecting registered parks, gardens and battlefields
and world heritage sites; and

specific consent required for allowing particular activities on particular sites,
such as metal detecting on Scheduled Monuments or on archaeological sites
within Countryside Stewardship agreement land, or reporting of finds.
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Streamlining Listed Building Consent EH and ODPM 2001
Unification of Consent Regimes ODPM 2004
Ripping Up History EH 2003
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The case for change
A number of recent research and consultation exercises have identified drawbacks
with the current system of consents.
The 2004 ODPM research report on the Unification of Consent Regimes4
concluded that, while there were some advantages to a system of separate
consent regimes, the current system was perceived by many users as complex,
confusing, expensive, inconsistent and slow.
Responses to the DCMS 2003 consultation on the protection of the historic
environment5 suggested that respondents found the existing system of heritage
controls confusing and that rationalisation was needed.
A study of LBC carried out on behalf of the ODPM concluded that management
agreements for the constructive and efficient management of complex sites could
only be implemented with changes to the consent process6.
Surveys carried out as part of the DEFRA and EH COSMIC programme have
found that many landowners find the SMC and class consents regime complex and
hard to understand and reliant on farmers themselves being able to accurately
determine cultivation depths without professional advice.
In terms of single sites, such as an individual listed building or scheduled
monument, the key issue in terms of consents is the time taken to process
applications. Obtaining heritage consents can sometimes be a slow process. The
current target for local planning authorities to deliver LBC decisions is eight weeks,
though complex cases, call-ins or appeals can take far longer. At present, 63% of
Listed Building Consent applications are decided within this timescale. There is no
statutory timescale for determining SMC, but applications are generally dealt with
within four months.
For more complex sites that include a range of designated assets the process is
not only lengthy but complicated and hard to understand. The owner of a site that
includes a listed building and a scheduled monument, for example, may find
themselves having to make up to three separate consent applications, one to the
local planning authority for planning permission, one to the local planning authority
for listed building consent and one to the DCMS for SMC. If the site is located in a
conservation area, there may also be a need for a separate application to the local
planning authority for Conservation Area Consent.
The issues of complexity and delay are not limited only to consents for work to
historic assets, but might instead be applied to any consents within the planning
system. There are, however, a number of arguments for reforms that focus
specifically on heritage consents.
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Unification of Consent Regimes ODPM 2004
Review of heritage protection: the way forward DCMS 2004
Streamlining Listed Building Consent EH and ODPM 2003
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First, the reform of heritage consents is an essential building block of the HPR.
The proposed HPR reforms will simplify the entire heritage protection system, from
designation through to management. It can only be effective if consents are
addressed as part of the wider reform package.
Second, as the ODPM research has recognised, unification of consent regimes is
a complex and difficult process. Focussing on only a limited number of consent
regimes relating to historic assets provides a manageable starting point. Joining
up LBC and SMC may, as ODPM research has suggested, provide a step towards
further unification. There might be other steps worth exploring, such as the
potential for joining up CAC with planning permission.
Third, a focus on heritage consents helps to address a key concern of the heritage
sector. There are fears among stakeholders that the unification of consents might
lead to a dilution of conservation and heritage input into the consent process. It
could be argued that keeping heritage issues as part of a separate but simplified
consent process will address this risk and ensure that the historic environment
continues to be accorded sufficient weight while meeting deregulation objectives.
Characteristics of a new system
There are a number of options for reforming the current heritage consent regimes.
Whatever model is adopted, any future changes will need to meet a number of
core policy objectives. Reform of the heritage consent regimes must:

Maintain current levels of protection for historic assets. The Government has
given a commitment as part of the HPR that any reforms to the heritage
protection system will not dilute the current levels of protection for historic
assets. Any reforms must maintain the levels of protection provided by the
existing consent regimes.

Enable the appropriate management of historic assets. The HPR promotes
an approach to the future stewardship of historic assets that is designed to
enable appropriate management rather than simply act as a barrier to change
and development. Any reforms to the consent process must enable and
promote this active management of historic assets.

Make the system more comprehensible. For non-heritage professionals, and
for developers and householders in particular, the current system of differing
heritage designations and associated heritage consents can be hard to
understand. Different designations are applied to historic assets according to
different criteria, applied to different areas, with different consent regimes
administered in different ways and by different bodies. Any reforms must be
able to demonstrate that they are making this system more comprehensible
rather than adding to complexity.

Reduce bureaucracy, streamline the system and make it more efficient. The
Government has made a commitment to streamlining and speeding up the
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operation of the current planning system. Any reforms to the current consent
regime must be able to demonstrate that they will simplify and streamline the
system for operators and end-users, reducing both timescales and costs.
Findings from the English Heritage pilot projects
Following the publication of the 2004 Government decision document on the
heritage protection system7, EH has been running a number of pilot projects
designed to test out the practical implementation of the proposed heritage
protection reforms.
The pilot projects have provided useful evidence of how reforms relating to
heritage consents might be developed. Before looking at the issue of consents in
detail, however, it is helpful to outline conclusions from the pilots relating to
designation under the new system.
Designation under the new system
The heritage protection reforms will greatly simplify the designation of historic sites.
By aligning a number of currently separate regimes, the reforms will create a single
designation process covering all historic assets, which will be recorded in a new
Register of Historic Sites and Buildings in England (the Register).
All historic sites will have a Register entry defining what is designated and why.
The Register entry will include a written element, describing what is included, with
a summary of importance linked to published designation criteria, and a GIS map
defining the extent of the designation. Complex sites will be designated using a
two-tier approach. Each individual asset will be designated in the same way as a
simple Register entry, and these individual assets will be accompanied by an
overarching description of the site as a whole.
The national designation process will be managed by EH. A local section of the
Register will be compiled of locally originated designations and will be managed by
local authorities.
These improved designations will offer owners and managers a clearer
understanding about the historic assets in their care. This improved understanding
will be a key factor in improving the quality of consent applications and their
handling.
A major cause of confusion and difficulty under the current system is the double
designation of buildings and structures as both scheduled and listed. The new
Register will eliminate this confusion by removing all dual designations.
Detailed issues relating to designations are considered in a separate paper.
However, work on designation has also helped to clarify the issues that proposals
for a reformed heritage consents regime will need to address, namely:
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
The need to enable the appropriate management of different types of asset.

The need for a streamlined and consistent delivery process.

The relationship between the reformed consents regime and statutory
management agreements.

The extent to which other heritage consents beyond SMC and LBC might be
included in a reformed consent regime.
The rest of this paper considers each of these issues in turn.
The need to allow the appropriate management of different types of asset
LBC and SMC are different regulatory regimes with different aims. LBC is
designed to allow buildings to change and adapt providing that such changes do
not compromise their special interest. SMC is designed to maintain a site or
monument essentially in its present state, and assumes that major change is
undesirable.
One of the key conclusions of the HPR pilot projects is that the new Register will
need to maintain distinctions between different types of historic asset. These
distinctions have yet to be finally agreed, but are likely to be along the lines of
archaeological sites and monuments, useable buildings, and landscapes. Given
these distinctions, the pilots have also identified the need for a unified consent
regime that will be able to meet the differing needs of these different types of
asset.
At the site of Kenilworth Castle, Abbey and mere in the Midlands, there is a range
of designated structures on the site, and the new unified designation system
clearly distinguishes below ground archaeology and monumentalised structures
from standing buildings that are either in use or are capable of adaptive re-use,
replacing the current confusing overlaps of listing and scheduling. On the basis of
the definitions of these different assets in the new Register, it has been possible to
match the regulatory regimes to deliver either detailed scrutiny of repair and
maintenance at one end of the scale or more dynamic change of use and
adaptation at the other.
At Darnall Steelworks Sheffield the same approach is illustrated on a much more
constrained industrial site with built and archaeological elements, and in a
regenerative context. Again, clarity of the designation base in the new Register
allows the appropriate management of assets that need careful conservation as
found, creative re-use of other structures and re-development of other parts of the
site.
The need for a streamlined and consistent delivery process
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An effective unified heritage consent will need to be based around a streamlined
and more consistent delivery process.
A revised delivery process for heritage consents that could create a single point of
entry into the system and a more consistent process would address many of the
criticisms of the current regimes. It would make the system simpler, more coherent
and more understandable. It would help to ensure greater consistency of decisionmaking.
Local authorities are currently responsible for the administration of LBC and CAC,
with EH engagement as appropriate. There are strong arguments in favour of
making local authorities the single gateway for all heritage consents.
First, local authorities are already responsible for the majority of heritage consent
applications. In 2003/04, for example, there were 33,100 LBC applications, 3,200
CAC applications and 831 SMC applications, reflecting the contrast between the
number of listed buildings (more than 370,000) and scheduled monuments (less
than 20,000).
Second, the HPR seeks to promote local engagement with the protection and
management of historic assets. Greater centralisation in the heritage consents
process would remove this local dimension.
Third, local authorities, through the provision of Historic Environment Records
(HERs), are the organisation most likely to hold the information base needed to
underpin the consent system. The HPR envisages a new statutory responsibility
for local authorities to maintain or have access to HERs.
Initial survey work by DCMS and ODPM of the provision of local authority historic
environment services has produced a generally positive response to the main HPR
reforms, with many local authorities feeling that the proposed reforms complement
work already underway towards a more unified historic environment service.
Further detailed work will be needed with individual authorities to determine the
likely resource implications of HPR implementation, but it seems likely that local
authorities would be able to adapt to a new role as providers of a single gateway
for heritage consents.
Any revised heritage consent process will require the engagement of EH. At
present, EH are consulted on all SMC applications and on all LBC applications
involving Grade 1 or Grade II* listed buildings, on planning applications affecting
the setting of grade I and II* listed buildings, grade I and II* historic parks and
gardens and registered battlefields, and major developments in conservation
areas. The new Register will introduce simplified and consistent grading for all
designated assets. This will enable a clear and consistent trigger for EH
involvement in heritage consent casework.
In addition to a consistent grading system, a reformed heritage consent process
would also need to deliver common arrangements for notification, consultation,
call-in and appeal.
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The relationship between the reformed consents regime and statutory
management agreements.
A key recommendation of the HPR is the introduction of new statutory
management agreements for large-scale or complex historic sites.
Statutory management agreements are designed to enable the positive and
efficient management of complex sites or similar sites in dispersed locations under
single ownership or management. They will be voluntary agreements entered into
between the owners and managers of a site, local authorities and EH that will
agree a strategic vision for the management of a site over a fixed period of time
and provide advance consent for strictly defined agreed works.
Previous research on statutory management agreements8, and the HPR pilot
projects, all indicate that the agreements have the potential to be a valuable tool in
improving the management of such sites, creating positive partnerships between
owners and local authorities and reducing the burdens of individual consents.
Management agreements are considered in detail in a separate paper. However,
the HPR pilot projects have demonstrated the difficulties of constructing
agreements based on the current consent regimes, since overlap, confused
reporting lines and processes make pre-agreement to proposed works unfeasible.
The pilots have concluded that a single gateway and consistent process for
determining consents is a key pre-requisite for effective management agreements.
As ODPM research9 has shown, successful management agreements will also
depend on the ability of local authorities to determine in advance whether works
are likely to require consent. This will require legislative change.
The extent to which other heritage consents beyond SMC and LBC might be
included in a reformed consent regime
Other heritage designations, such as registered parks, gardens and battlefields
and world heritage sites, do not have separate consent regimes but are instead
dealt with as material considerations within the mainstream planning system.
Given the overall objective of simplifying and streamlining the consent system, the
HPR does not seek to increase the levels of protection afforded to these assets,
and there is no proposal to include them as separate consents in a reformed
process. The HPR pilot projects have provided no evidence to change this view.
There are a number of other minor regulatory regimes relating to designated
heritage sites that could be reformed in order to simplify the consents process
further, in particular consents relating to metal detecting and the reporting of finds.
At present, specific consent is required for metal detecting on a scheduled
monument or area of archaeological importance (from EH), or on known sites of
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Streamlining Listed Building Consent EH and ODPM 2003
Streamlining Listed Building Consent EH and ODPM 2003
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archaeological interest within Countryside Stewardship and Higher Level
Environmental Stewardship Schemes (from DEFRA). Permission from the
relevant landowner is required for metal detecting on all sites. The reporting of
finds in England through the Portable Antiquities Scheme is voluntary, except for a
limited range of material identified as treasure under the Treasure Act 1996. In
order to simplify the consents system further, consideration will be given to
whether specific consent for metal detecting, and obligations for the reporting of
finds should be extended to all designated sites.
There is a wider question as to whether CAC might become part of a reformed
heritage consent process, or whether it would be more appropriate to merge CAC
with planning controls. It could be argued that controls on the demolition of
unlisted buildings in a conservation area would operate more effectively through
planning permission. This approach would also enable controls to be introduced to
take account of the Shimizu judgement, which had implications for the level of
protection over partial demolition in a conservation area10.
Summary and next steps
There is a great deal more work to be done in developing detailed proposals for a
reformed heritage consents process. Nevertheless, previous research and the
findings of the HPR pilot projects have suggested the outline of a new process,
comprising:

A unified designation process that maintains a distinction between
archaeology and monumentalised structures, useable buildings, and
landscapes. The new process will remove any dual designations as
individual assets may only be given one designation.

A re-aligned consent process based on these designations, administered by
local authorities and with input from EH as appropriate. The reformed
consents would enable the appropriate management of different types of
asset.
Within the new heritage consent:

archaeology and monumentalised structures would remain subject to tight
regulation for all activities;

consents for useable buildings would enable greater adaptation and
change.
Shimizu (UK) Limited v Westminster City Council (1997) 1 WLR 168, where
the Court held that ‘demolition’ means the total demolition of a building
and that partial demolition is to be considered as ‘alteration’.
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Outside the new heritage consent:

landscape features would be considered as a material consideration
within the planning system.
In addition to continuing work in the pilots, the following steps will be needed in
order to develop these proposals further:

Further work with local authorities to develop an understanding of the likely
resource implications of any change. EH and DCMS are currently developing
a specification for research with a representative sample of local authorities;

A detailed analysis of the SMC and LBC notification, consultation, call-in and
appeal processes;

A detailed analysis of the legislative changes that would be necessary to
bring together SMC and LBC within a single system;

Further work on how other regulatory regimes relating to historic assets
(Areas of Archaeological Importance, designated wrecks etc.) may be
incorporated within the new designation and consents system; and

Further work on the how assets will be graded in the new Register.
Questions for discussion
1. Is the new approach to heritage consents set out in this paper likely to deliver a
system that is more open, simpler and more efficient?
2. Are local authorities the appropriate organisations to provide a gateway to a
unified heritage consent process?
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