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LEGAL BRIEFING
Conservation and the new planning system
The historic environment is no longer being accorded the privileged place it once held within the planning system, report Charles Mynors and Alex Booth.
Practitioners will have been aware of the recent coming into force of parts of the Planning and Compulsory Purchase Act 2004, described by the editor of the Planning Encyclopaedia as 'by far the most significant planning legislation since the Town and Country Planning Act 1968'. Or at least they should have been aware of it. This article looks at some of the implications of that Act (and the related secondary legislation and policy guidance) for conservation.
The 1968 Act, significantly, as well as introducing in essence the system of listed building control as we have it today, brought in the now familiar system of two-tier development plans (structure plans and local plans), replacing the single-tier system of plans introduced in 1947. That two-tier system was itself modified in relation to metropolitan areas in England (in 1985) and all areas in Wales (in 1994), with the introduction of unitary development plans. The 2004 Act, by contrast, which contains virtually no provisions expressly relating to the built heritage, introduces a wholly new set-up of regional spatial strategies and local development documents and (in Wales only) local development plans.
Future articles in Context will consider the provisions of Parts 4 and 5 (development control) of the new Act and Part 7 (application of the planning system to Crown land). Part 8 relates to compulsory purchase, but does not amend the rules governing the acquisition of historic buildings.
It may be noted that the new arrangements do not apply in Scotland. Legislation, not necessarily along the same lines, is expected there in the relatively near future (see www.scotland.gov.uk/News/News-Extras/187). Northern Ireland has only just caught up with the Planning and Compensation Act 1991, so is unlikely to produce further legislation for a while.
The new approach
The new system in England consists of regional spatial strategies (RSSs), prepared under Part 1 of the 2004 Act, and local development documents (LDDs), prepared under Part 2. Parts 1 and 2 came into force on 28 September 2004. In Wales, there is to be a Wales Spatial Plan and local development plans, both under Part 6 (likely to be brought into force in autumn 2005).
The approach to be adopted in preparing such documents is explained in section 39 of the Act, which states that it must be done 'with the objective of contributing to the achievement of sustainable development'. That phrase is not defined, but some assistance is provided by careful examination of in the new Planning Policy Statement (PPS) 1, Delivering
Sustainable Development, which replaced the old PPG 1 with effect from early 2005. Paragraph 27 of the PPS exhorts planning authorities to achieve ten specified goals, the penultimate of which is 'enhance as well as protect biodiversity, natural habitats, the historic environment and landscape and townscape character'. It is good to see an equal emphasis on enhancement as well as mere protection.
In doing this, authorities should take a 'spatial planning' approach, whatever that is. Paragraph 30 of PPS 1 explains it thus: 'Spatial planning goes beyond traditional land use planning to bring together and integrate policies for the development and use of land with other policies and programmes which influence the nature of places and how they can function'.
It is also significant that the duty of local planning authorities, in preparing LDDs, to keep under review the matters which may be expected to affect the development of their areas, now extends to cover for the first time the 'social and environmental characteristics' of the area in question (see section 13 of the new Act), as well as its physical and economic ones. This too is indicative of the broadening scope of planning, to encompass more than just traditional land use concerns.
Regional planning
The starting point for the new system is that there is in future to be a regional spatial strategy (RSS) for each region in England. This is to be prepared by the relevant regional planning body (RPB) - which will be the directly elected regional assembly, if one ever emerges. In London, the corresponding document will continue to be the Spatial Development Strategy, prepared by the mayor. And for the moment most regional planning guidance (RPG) will be deemed to be the RSS under the new arrangements.
Guidance on regional planning is given in the new PPS 11, Regional Planning, issued in September 2004, which makes no reference to the historic environment.
The next tier down will no longer be the structure plan, but the local development framework (LDF). County councils will thus in future have no strategic planning function, except in relation to minerals and waste disposal, although they may still be invited to share the workload of district authorities in particular cases.
The local development framework
The basis of local planning will in future be not a single document, but a portfolio of local development documents (LDDs) (see section 17 of the 2004 Act):
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'the local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area'. Local planning authorities for this purpose are district and borough councils, unitary authorities, national park authorities and the Broads Authority (see section 37).
Local authorities are required to produce, at the outset, a statement of community involvement (SCI), explaining to local communities and stakeholders how they will be involved in the preparation of all LDDs and how this will be achieved. The SCI sets out standards for public consultation with which the authority must comply.
The proposed LDDs for each planning authority's area must be specified in the local development scheme, along with such other documents as the authority thinks appropriate. Schemes should have been prepared for all areas within six months of the coming into force of Part 2 of the Act - that is, by 28 March 2005. A scheme will specify which LDDs are to be development plan documents (DPDs) - that is, those which are to go, or have been, through the full scrutiny process, comprising community involvement, consultation and independent examination by an inspector. It is only development plan documents that are accorded the full status of being part of the development plan for the purposes of section 38(6) of the 2004, which is the successor to section 54A of the 1990 Act.
Section 38(6) thus provides that: 'If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.'
That applies in particular to the determination of planning applications by local planning authorities (and by the secretary of state on appeal), and to applications affecting conservation areas and listed buildings just as much as to any others.
While the bones of the new system are provided by Part 2 of the 2004 Act, the sinews are in the Town and Country Planning (Local Development) (England) Regulations 2004, and the flesh in the new PPS 12, Local Development Frameworks. Helpful further guidance is provided in Creating Local Development Frameworks: a companion guide to PPS 12, published by the ODPM in 2004 (and available, along with the PPS, at www.odpm.gov.uk ). PPS 12 explains (in section 2) that the local development framework should include the following development plan documents:
•  The core strategy
•   Site-specific allocations of land
•  Area action plans (where needed).
The core strategy, which will normally be the first DPD to be produced, will set out the authority's spatial vision and strategic objectives for its area. In other words, it will contain the broad policies and the key land-use allocations, but not the more or less comprehensive
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suite of platitudinous development policies found in so many old-style local plans. 'Local planning authorities should avoid producing a compendium of use-related development control policies which can be repetitive and quickly become out of date. The focus, instead, should be on topic-related policies such as protecting residential amenity; protecting landscape and natural resources; nature conservation; addressing accessibility; highway and transport issues; protecting vitality and viability; and addressing visual impact etc' (PPS 12, paragraph 2.29).
Note that there is no mention of the historic environment.
Area action plans should be used to provide the planning framework for areas where significant change or conservation is needed, with the focus clearly on implementation. Criteria may be set in the core strategy for identifying locations and priorities for preparing area action plans. They should, among other things, protect areas particularly sensitive to change, and resolve conflicting objectives in areas subject to development pressures. But the focus is on short-term action, normally over three years, rather than on inactive preservation. While, therefore, some conservation areas will no doubt be the subject of, or included in, area action plans, the emphasis will be on regeneration. Any conservation benefit will be an added bonus.
And an adopted proposals map will be needed, to illustrate the spatial extent of policies, with inset maps as necessary. That map will also identify areas of protection, including conservation areas. The inset maps may be used to show policies for particular parts of an authority's area, such as those covered by area action plans.
In all of this, it may be observed that the emphasis is definitely, and probably rightly, on planning for those areas (and topics) which require intervention, rather than attempting to provide policies for those large tracts of land, including many conservation areas, where no particular action is required.
Supplementary planning documents
Other planning documents must be prepared within the same policy framework, but need not be the subject of an independent examination. Supplementary planning documents (SPDs) are part of the planning framework for the area, although they do not form part of the statutory development plan. They may be particularly relevant to conservation areas.
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Charles Mynors and Alex Booth are barristers in the Chambers of Robin Purchas QC in the Temple. A new edition of Mynors' seminal book, Listed Buildings, Conservation Areas and Monuments, will be published by Sweet & Maxwell in the autumn of 2005 - to include all relevant new legislation, and over 100 decisions of the courts since the previous edition.
Guidance in PPS 12 is as follows: 'Supplementary planning documents may cover a range of issues, both thematic and site-specific, which may expand policy or provide further detail to policies in a development plan document. They must not, however, be used to allocate land. Supplementary planning documents may take the form of design guides, area development briefs, master plan or issue-based documents which supplement policies in a development plan document'.
This emphasises that SPDs must be tied back to a relevant development plan document policy. They must also be produced with community involvement and supported by a sustainability appraisal report.
Such an SPD could be used to set out an authority's generic policies for its conservation areas; but it is very different in concept to character appraisals and management proposals prepared under section 71 of the Listed Buildings Act, which requires authorities to prepare 'proposals for the preservation and enhancement of conservation areas'. Plans under section 71 currently appear to be outside the local development framework, as they would not be tied back to a development plan document policy. One approach (which ODPM is understood to be considering) might be for an authority to propose a single SPD covering all of the conservation areas in its area, which could point to proposals for individual conservation areas prepared under section 71.
Indeed, in a wholly coincidental development, the ODPM has recently included a new three-part Best Value Performance Indicator, under the Local Government Act 1999, relating to conservation areas:
•  The total number of conservation areas in an authority's area (BV219a)
•  The percentage of conservation areas in its area with an up-to-date character appraisal (BV 219b), and
•  The percentage with published management proposals (BV 219c).
It is perhaps significant that these are included in the list of BVPI indicators under the heading 'culture', rather than 'planning', presumably because the BVPI was promoted by the DCMS. But the 'management proposals' there referred to are those under section 71, not the SPDs under the new system.
Transitional arrangements
There are now structure and local plans in existence for most if not all areas of England. These will cease to have any status three years after the start of the new system (that is, by September 2007), unless - as seems likely to occur - the secretary of state prolongs their life in particular cases.
This emphasises the need to ensure that new-style local development documents are put in place rapidly. That in turn indicates the importance of those who feel so inclined to take rapid action to ensure that those new documents include suitable policies relating to the historic environment and, in particular, an over­arching policy in the core strategy to form the basis for
related supplementary planning documents and area action plans.
Wales
The arrangements for Wales are somewhat different. Peoples, Places, Futures: the Wales spatial plan is equivalent to the RSS in each English region. Tabled in November 2004, it is available at www.wales.gov.uk.
Instead of a local development framework there will be local development plans (LDPs). A Welsh Assembly Guidance Note issued in revised form in November 2004 provides initial advice. More detailed guidance will no doubt be issued when Part 6 of the Act is brought into force later this year. The principles are, not surprisingly, similar to those applying to the LDDs in England. In particular, the Assembly Government encourages authorities to produce shorter plans, not overly burdened by detailed development control policies.
But there can be more detailed area policies: 'Where there are proposals for significant change in the use or development of land or conservation of one or more areas, LDPs should contain more detailed policies. These should provide the context for that area as a whole. Detailed design guidance and master planning should not be included in the development plan but should be covered in supplementary planning guidance (SPG), such as development briefs, which can be a material consideration in deciding planning applications' (2004 Guidance, paragraph 28).
Conclusion
Conservation professionals need to be aware of the major changes taking place that will, in the longer term, transform the present planning system, and thus the context within which they work.
More fundamentally, reading through all the legislation and policy relating to the new arrangements leaves a clear impression that the historic environment is no longer being accorded the privileged place it once held within the planning system. Changes to the listing system, discussed in previous issues of Context, are endlessly postponed, because they are not seen as top priority. Perhaps it is considered that the conservation system works reasonably well as it is and does not need urgently to be altered (as it did back in 1968). The focus of attention, at Eland House and in Westminster, is now elsewhere.
It could be argued that all this will marginalise, and therefore downgrade, conservation issues. I prefer the view that, along with the protection of the natural environment, historic buildings conservation is now being taken for granted as a natural part of that system. And that is as it should be.
The authors are grateful for help in writing this article from Anna McPherson (a partner in the Paul Drury Partnership, and commissioned by English Heritage to revise and update its guidance on conservation areas, to be published shortly).
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