Buried amongst the raft of changes announced last week by MHCLG on new PD rights and Use Classes, the new rights on demolition of buildings and the construction of new dwellinghouses (‘Class ZA’) contained some interesting new statutory provisions on the need to provide statements on heritage and archaeology that might suggest that wider changes are on the minds of civil servants.
Whilst the PD rights straightforwardly do not apply to buildings subject to statutory designations (Conservation Areas, Listed Buildings, World Heritage Sites and Scheduled Ancient Monuments) the new Class ZA provision cites the requirement to provide an assessment of the impact on heritage and archaeology as part of the prior approval process. This assessment must be a written statement ‘in respect of heritage and archaeological considerations of the development.’
Interestingly, we think this is the first time that heritage statements have been listed as a specific regulatory requirement in England, albeit in a narrow fashion. However, due to the exclusions of designated heritage assets in PD rights, the new Order in effect creates a statutorily mandated consideration only of non-designated heritage assets and the settings of designated assets.
So, what are the implications?
It remains unclear what “heritage” means in this particular case. There does not appear to be a definition in the Statutory Instrument or the accompanying Memorandum to clarify, although as we know, for the purposes of the SI, it certainly excludes designated heritage assets. The default position is probably therefore the definition of “heritage assets” in the NPPF, which includes “A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).”
This is a broad definition and, in our experience, is often used even more broadly by LPAs. Sometimes non-designated heritage assets are identified with little rigour, resulting in a stalemate over acceptable changes and a resultant overweighting of heritage impacts. Within this context, it’s our view that the new PD rights, despite their overarching objective of liberalising planning requirements, create a potential additional constraint for local authorities to refer to, in seeking to refuse Prior Approval applications. Given that there’s no indication in the Instrument or Memorandum as to what might be considered an unacceptable impact, therefore justifying refusal of a PD application, the door appears worryingly open to easy refusals. It’s all as clear as mud, in summary, but the new PD rights provisions certainly increase the need to engage with the heritage and archaeological context of a site very early in the process, in order to robustly assess and mitigate potential obstacles at the outset and consider the potential for enhancements.
It is in many ways extraordinary that a statutory requirement to provide an assessment of heritage and archaeological impact has in effect been brought in for non-designated heritage assets before a similar requirement for designed assets. Whilst designated heritage assets still have considerably more protections, which should of course be the case, it is of note that the rise of the non-designated heritage asset in planning policy considerations has begun to see some statutory weight too.
Watch this space on that one; the changes may give an insight into the direction of thinking of the Ministry on a forthcoming Planning Bill. Heritage Impact Statements are already a statutory requirement in Wales, it looks increasingly like England will soon follow suit and perhaps with an added non-designated twist. We shall wait and watch with interest!