There’s nothing wrong with a little bit of tidying up

We asked our children to tidy up their rooms yesterday. They hadn’t done so for a while, so this seemed reasonable. And they did a good job. Clothes were picked up, lego blocks and hatchimals* put away, and tidy rooms duly appeared. What they didn’t do was try to claim that this tidying up was the most radical reform of the layout and function of their bedrooms since WW2 (or even last month for that matter).

However, this seems to be the direction that we’re going in with planning reform. Last year’s White Paper did, indeed, promise “radical reform unlike anything we have seen since the Second World War” but if one believes the press coverage in The Times from Monday the planning reforms may now be little more than “a tidying up exercise”.

So that’s a bit of a shame.

But there’s nothing wrong with a bit of tidying up. Hopefully, tomorrow morning our children will be able to find their uniform more easily and get ready for school more quickly. **

And it’s the same with the planning system. A bit of tidying up isn’t what we’ve been waiting for with giddy excitement since last summer, but there are definitely areas where some adjustments to the inner workings of the machine are long overdue.

Close to the top of my list is how we go about making changes to planning permissions and other consents. The problems of s73s / minor material amendments and s96a / non-material amendments are fairly well known and surely must feature.

The parallel provisions related to listed building consent get less attention, but seem to be proving even more problematic as a result of some curious recent appeal decisions.

It gets a little techy here.

S19 of the 1990 Listed Buildings Act provides a power to remove or vary a condition attached to a listed building consent. It is used for similar purposes to s73 of the 1990 Planning Act, although its legal effect is different – it amends the original consent, rather than granting a fresh permission with the relevant condition modified or removed, as s73 does for planning permissions.

In some LPA areas, s19 applications have been used to amend an ‘approved plans’ condition to allow modifications to the contents of listed building consents. In doing so, this is effectively mirroring the s73 minor material amendment route within the listed building consent regime.

But this raises two curiosities.

First, in determining an application under s19, the duty that the LPA was under when the original consent was granted (to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interests under s16(2)) appears to no longer, specifically, apply. So potentially it would be open to an LPA to approve changes to an existing listed building consent under s19 that would not satisfy the s16(2) “have special regard” duty. I think this is reasonably well known which is why in some places there is a suspicion of s19 applications.

Where this gets stranger, though, is as a result of this listed building consent appeal decision in Bath and North East Somerset. In this decision, the Inspector concluded that the appeal automatically failed, because the approved plans condition the application sought to vary could not have been imposed in the first place.

The Inspector said:

With reference to Section 17 of the Planning (Listed Buildings and Conservation Areas) Act 1990 there was no mechanism by which the Council could have imposed the original condition. The condition is therefore invalid.

Appeal decision letter, APP/F0114/Y/21/3269086, 28 June 2021

A similar line was taken in this case in Westminster where, although the appeal was allowed, the Inspector noted that “I have not imposed a condition for the works to be carried out in accordance with the drawings listed as there is no power to impose such a condition under section 17 of the Act.

By way of context, the power to impose a condition is at s16(1) of the Act, which states:

Subject to the previous provisions of this Part, the local planning authority or, as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions.

S17 then goes on to say:

(1) Without prejudice to the generality of section 16(1), the conditions subject to which listed building consent may be granted may include conditions with respect to—

(a) the preservation of particular features of the building, either as part of it or after severance from it;

(b) the making good, after the works are completed, of any damage caused to the building by the works;

(c) the reconstruction of the building or any part of it following the execution of any works, with the use of original materials so far as practicable and with such alterations of the interior of the building as may be specified in the conditions.

(2)A condition may also be imposed requiring specified details of the works (whether or not set out in the application) to be approved subsequently by the local planning authority or, in the case of consent granted by the Secretary of State, specifying whether such details are to be approved by the local planning authority or by him.

(3)Listed building consent for the demolition of a listed building may be granted subject to a condition that the building shall not be demolished before—

(a)a contract for the carrying out of works of redevelopment of the site has been made; and

(b)planning permission has been granted for the redevelopment for which the contract provides.

The Inspectors don’t fully set out their reasons, but seem to have concluded that, as an “approved plans” condition isn’t listed as one of the conditions specifically provided for in s17, it cannot be imposed. This appears to me to disregard the “without prejudice to the generality” of the power in section 16(1) to impose conditions. It therefore followed, in the Bath & North East Somerset case, that the application and appeal to amend that condition also had to fail.

Meaning that amending an existing listed building consent is, largely, impossible and that a fresh consent needs to be sought each time.

So my plea would be that, if the “tidying up” is to involve looking at how planning permissions are amended (which, surely, it must – fixing s73 isn’t going to lose anyone a by-election), the Government also remembers to look at doing the same to s19 of the Listed Buildings Act at the same time, which seems to have been rendered almost dysfunctional by PINS’ recent decisions.

And maybe if these points could be looked at there wouldn’t be quite so many old hatchimals left lying around on the floor of the planning system, ready to be trodden on by unsuspecting applicants and LPAs.

Picture of two hatchimal boys
* if you don’t know what a hatchimal is, count yourself lucky. Suffice it to say they are very small, very very numerous, spiky and so extremely painful when trodden on in the dark.

** wishful thinking on my part.

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