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Why planning authorities must have conservation skills!

A resource from the IHBC to help conservation specialists explain why their skills are an essential part of planning services.
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1. Introduction
This briefing note is aimed at conservation professionals working in or with local planning authorities. Its purpose is to demonstrate why conservation skills are essential to the effective delivery of planning services in local government.

Users may need to adapt the texts and sources provided here to their own needs.

This is a condensed version of a longer document which is available at link

Most source documents will be available on the IHBC websites, under ‘Select papers’, at
link

In the first instance, queries, evidence, references and comments may be directed to the IHBC’s director Seán O’Reilly at
director@ihbc.org.uk
This advice includes independent evidence which justifies conservation roles, services and employment in planning authorities.


2. Statutory duties in conservation
A number of statutory duties are undertaken by Planning authorities. [1] Failure to adopt appropriate standards in observing those duties - professional, conservation or administrative - can lead to judicial review, Ombudsman’s criticism and/or the imposition of fines. These are listed in Appendix 1.

Specific cases are identified in
Section 5.

For our NEW summary review of prosecutions see 'Listed Buildings Prosecutions Database Commentary' or click


3. Conservation skills are required to deliver statutory obligations
Specialist conservation skills are key to meet the statutory duties required of planning authorities.
'In light of the central role of conservation skills to the delivery of statutory duties, the paper cited in section 2 above includes a list of specialist functions which are specifically linked to conservation skills.

Central government policy and guidance (in England ), states that specialised conservation skills are necessary in the planning and development control process to ensure that local government duties are fulfilled.

This includes:

Planning Policy Statement 5, Planning for the Historic Environment, 2010.

Policy HE7.1 of the PPS states that lpas should take account of expert advice.

The PPS requires that consideration must be given to specific conservation priorities and so therefore the statutory duties of local authorities in conservation cannot be cannot be delivered effectively without the informed integration of conservation skills within the decision-making process.


4. Non-statutory duties in conservation
PPS5 has emphasised the national policy requirement to consider the non-designated historic environment as well as the nationally designated.

Local planning policies as set out in Local Plans and LDFs require planning authorities to recognise and encourage proactive and positive approaches to the conservation, enhancement and protection of the historic environment at a local level.

PPS5 identifies the need to include issues such as climate change and sustainability in the context of the historic environment.


5. Case studies of failed services
In conservation related Ombudsman decisions failures have been identified where there has been an absence of appropriately skilled practitioners to inform the planning process. CLICK HERE FOR DETAILS AND UPDATED CASE LISTS.
Appendix 2 contains a summary of a number of relevant Ombudsman cases with links to the full decisions.

These reports document how such service failures can easily arise through the absence of skilled conservation advice in the planning process.


6. Conservation activities & skills: their value in economic terms
Customers of planning authorities, whether in business or householders, need effective planning services. Conservation skills are an important part of this system.

Development interests recognise that an effective and speedy process is dependant on the provision of skilled conservation staff. The Penfold Review recognised the value of specialist staff in ensuring applications are dealt with swiftly and efficiently. (Chapter 2 of the 21 – 33 report)
IHBC membership criteria reflect the broad and interdisciplinary skills that are crucial to historic environment conservation. The Penfold Review of non-planning consents, a Department of Business, Innovation and Skills report led by the development community, specifically cites the operation of the IHBC’s membership criteria as a suitable quality assurance mechanism in the delivery of conservation services. [2]
Penfold states that:
‘...the Review strongly supports greater recognition of the need for appropriately trained and qualified professionals to deal with non-planning [conservation] consent applications. This will ensure the right quality of advice is in place, reduce the need for rework of consent matters and lessen the likelihood of important issues not being identified at the outset. ‘(2.48)
Penfold also states that:
'The skill requirements for conservation officer roles in local authorities include, but go beyond, technical and professional skills in design, construction methods and understanding of the historic environment. The IHBC, for instance, lays down eight core conservation competences for full membership, that include finance and economics alongside competences related more directly to conservation itself.’ (2.48)
The Penfold Review also shows that business interests support appropriately skilled professionals who are able to deliver conservation services within planning departments. Full professional membership of the IHBC is acknowledged by the Penfold Review as providing a model for how appropriate skills can be targeted to underpin effective delivery.

The conclusions of the Penfold Review and the business community which contributed to its findings of the review also support the Local Government Ombudsman’s cases which are mentioned in section 5 above. They help to demonstrate that competent Council procedures and outcomes in the historic environment are dependant on skilled conservation specialists.
7. Conservation skills: localism and local government
The value of conservation skills is endorsed by the independent valuation of Conservation Officers, Teams & Services carried out as part of the 2006 DCMS-EH report Historic Environment Local Delivery. [1]
A summary of the most relevant findings is included in Appendix 3.

Independent research has also identified that conservation skills are a key part of the local environment management (LEM) service.
Download 'Functional and Occupational Map for Local Environmental Management (LEM), 2007.'
8. Conservation services, standards and challenges.
Concerns over the professional conduct or advice of a conservation professional who is a member of the IHBC should be raised with the disciplinary committee of the Institute. The IHBC may then investigate the case in line with our Code of Conduct and Disciplinary Procedure. (link)
Professional and personal challenges
A local authority must understand that conservation negotiations can prove difficult for a variety of reasons that can include misconceptions, personal priorities and political needs of applicants. The final decision lies with planning and regulatory authorities, based on the entire range of material considerations.
Where the advice of a conservation adviser is in dispute, local authorities should first establish that any alternative advice is being provided from a professional with a competence in conservation. Professional bodies, such as the IHBC, can help advise on these issues.
9. References & resources
The IHBC’s web site is the primary resource for conservation professionals, with most papers available at
link
    Statutory functions in conservation
    The following information derives from a joint English Heritage, IHBC, ALGAO study into historic environment resources and activities in England , referred to here as ‘Staff resources’. [1]

    The duties that require special conservation skills and expertise include:

    • LPA planning duties with regard to listed buildings - Planning (Listed Building & Conservation Areas) Act 1990, section 66 (1) and following
    • LPA duties with regard to listed building consent applications - Planning (Listed Building & Conservation Areas) Act 1990, section 16
    • LPA control of works to listed buildings - Planning (Listed Building & Conservation Areas) Act 1990, sections 8 and following
    • LPA duties to notify Secretary of State of applications for listed building consent - Planning (Listed Building & Conservation Areas) Act 1990, section 13
    • LPA duties to consult English Heritage and National Amenity Societies - Planning (Listed Building & Conservation Areas) Act 1990, section 15
    • LPA duties regarding designation of conservation areas - Planning (Listed Building & Conservation Areas) Act 1990, section 69
    • LPA duties regarding appraisal of conservation areas - Planning (Listed Building & Conservation Areas) Act 1990, section 71 and following
    • Consultation of local planning authorities - Faculty Jurisdiction Rules (Care of Places of Worship) Rules (Statutory Instrument 2000, no. 2047), section 4
    • Consultation of Historic Environment Record – GPDO, Article 1 (2), page 5
    Relevant Ombudsman Cases

    i) In a case against West Wiltshire District Council in 2007, the

    ‘… Ombudsman found maladministration which caused the complainants injustice as a result of their sense of outrage that Members granted planning permission without knowing the views of the Conservation Officer and because they will never know whether a development they consider highly inappropriate for the Conservation Area might have been avoided.’ [3]

    The Council has agreed to make a payment of £2,000 to the Preservation Trust to be used for a project of benefit to the Conservation Area.

    ii) In a case of against Darlington Borough Council, of 11 December 2008, the Local Government Ombudsman found that ‘the reports on which the Planning Area Committee made its decisions were deficient’. [4] In particular, the report on which it decided to approve demolitions and conversions of the listed buildings failed:
    • ‘to correctly identify the buildings that were listed;
    • to explain the general presumption in favour of preserving listed buildings;
    • to clearly explain the proper tests for the committee to apply as set out in national Planning Policy Guidance 15 and confirmed by case law, i.e. first: will the proposed works significantly harm the listed building or its setting; second: if so, are the works desirable or necessary?;
    • to provide the information necessary to apply the second test;
    • to include a highly relevant point from an earlier decision by a Planning Inspector.’

    The Ombudsman concluded that the Council would not have approved the partial demolition of a long barn ‘if the Committee had been properly advised’.

    Based on the evidence, it was considered that formal input from a skilled Conservation Officer, properly input to the administrative processes, would have avoided an especially damaging case both as regards the quality of the area and the standing of the Council.
    iii) In February of 2010 the Local Government Ombudsman reported on the investigation of complaints about the way Kirklees Metropolitan Borough Council granted permissions for a listed Victorian Schoolroom to be demolished and for new houses to be built on the site. [5]

    The Ombudsman

    ‘… concluded that the Council’s maladministration caused injustice to the people who complained… [through] the potential loss of part of their area’s built heritage that contributes to the setting of the distinctive, listed Chapel and the general character of the Conservation Area.’

    The investigation found that ‘there were serious errors and omissions in the report and presentation to the Sub-Committee that granted the permissions.’ This included the fact that the

    ‘… Planning Officer accepted the applicant’s case without applying any of the tests required by English Heritage for such “enabling” development’ and that the Sub-Committee were not told of:
    • ‘the law requiring them to have special regard to preserving the listed Schoolroom;
    • national planning guidance that there should be a general presumption in favour of preserving listed buildings;
    • the specific tests that they should have applied before giving permission for the Schoolroom to be demolished;
    • relevant comments from the Council’s own conservation specialists.’

    Among the major failings highlighted by the Ombudsman was the fact that, of ‘32 photographs… shown to the Sub-Committee to illustrate the dilapidated condition of the Schoolroom – 24 of them were of a completely different building’.

    The Ombudsman considered:

    ‘that the applications would not have been approved if the officers had applied the correct tests and advised the Sub-Committee properly relevant comments from the Council’s own conservation specialists.’

    The Ombudsman then concluded that the Council should remedy its ‘maladministration causing injustice’, by


    ‘seeking to negotiate for the permissions to be relinquished in favour of a new scheme, for which it will meet reasonable design costs and planning application fees. In the event that negotiations fail the Council should consider revoking the permissions after considering a full report on all the relevant issues.’

    No estimate of the final cost to the Council has been provided.

    iv) In the case of an investigation of Calderdale the local Government Ombudsman found that the Council had ‘acted with maladministration’ because of its management of a sensitive involving ‘an extension and alterations to a primary school next to a Grade 2* listed 17th century hall’, noting in particular that ‘only 6% of listed buildings are Grade 1 or Grade 2*. [6] The Ombudsman recorded substantial criticisms at the same time as welcoming the no less substantial response by the Council to its failings. Reflecting the scale of the problems, the Council agreed to:

    • discuss with English Heritage, the School and the residents of the Hall the best way to deal with the boundary footpath and the need for significant screening;
    • meet English Heritage’s costs for making the recommendations;
    • ensure that officers responsible for promoting and project managing developments are fully briefed about the heritage stewardship responsibilities that they discharge on behalf of the Council;
    • ensure that all employees in the planning service are properly trained, supported and supervised to: identify planning applications with heritage stewardship implications; notify relevant bodies and organisations; take account of all relevant law, regulations, guidance and material factors;
    • make payments to the residents of the Hall to reflect their time, trouble and stress in pursuing their complaints;
    • report its failure to conduct its business lawfully in its 2008/09 Annual Governance Statement; and
    • review its system of internal control and operating cultures in the services concerned to identify the factors that allowed this failure to occur and determine whether action can be taken to avoid any recurrence.’

    These substantial remedies were in response to findings including that:
    ‘The law required the Council as planning authority to notify English Heritage, to take account of its comments, and to consider the setting of a heritage building of national importance when it dealt with the planning application for the School extension and refurbishment. It failed to do so ...’

    Also, it was determined that the Council

    ‘failed to have any regard to the effect of its proposals for the School extension on the setting of the Grade 2* listed Hall and did not comply with the guidance in Planning Policy Guidance 15 about shared and wide-spread responsibility for preserving the nation’s built heritage.’

    The Ombudsman again concluded that these procedural failings amounted to maladministration.
    The value of conservation skills is endorsed by the independent valuation of Conservation Officers, Teams & Services carried out as part of the 2006 DCMS-EH report Historic Environment Local Delivery.[1]

    The report can be summarised as follows:
    • The research confirms that conservation professionals ‘undertake a range of services, including development control, surveys of buildings at risk, advice to owners, designation and appraisals of conservation areas and heritage regeneration’.
    • It notes that the work of the Conservation Officer is often directly engaged in the local community and focussed on the local community to deliver change on the ground. Consequently the conservation officers and teams ‘deliver support to the historic environment over and above pure planning or statutory responsibilities, frequently using entrepreneurial skills to draw funds to the authority.’
    • ‘Many conservation specialists either lead, or are at the forefront of bidding for and delivery of, multi-funded regeneration or refurbishment projects for old buildings or the public realm.’ (p.5)
    • In general the report observed that Conservation Officers & Teams operate locally, ‘where the funding [they raise] is spent on capital works or within the community.’
    • This research confirms that, for many services, the skills and roles of the Conservation Officer or Team are at their most effective when they are firmly embedded in the local planning services.