What changes does the Levelling-Up and Regeneration Act 2023 make to heritage planning?
The Levelling-Up and Regeneration Act 2023 (LURA) introduces measures to put protection for more of England’s heritage assets on a statutory footing. The heritage provisions in the LURA require secondary legislation to be brought into effect.
Special Regard to Heritage Assets
Once the relevant provisions of the LURA are in force, scheduled monuments, registered parks and gardens, restricted area sites on/in the UK seabed and world heritage sites (all “relevant assets”), will enjoy statutory protection.
When considering whether to grant planning permission for a development which affects a relevant asset or its setting, local planning authorities (LPAs) and the Secretary of State will be obliged to have ‘special regard’ to the desirability of preserving or enhancing the asset or its setting.
Under national planning policy, LPAs already have a duty to take into account heritage assets (including relevant assets). However, a statutory obligation on LPAs to have “special regard” to such assets requires that significant weight is given to the protection and improvement of heritage assets.
Preserve / Enhance Listed Buildings
Furthermore, the LURA amends both the Town and Country Planning Act 1990 and the Listed Buildings Act 1990 to require LPAs to "preserve or enhance" heritage assets (including relevant assets) when considering a planning application (as opposed to only preserving these assets). In practice, this mirrors the terminology of the National Planning Policy Framework (NPPF) which emphasises “the desirability of sustaining and enhancing” the significance of heritage assets.
Enforcement Powers
The LURA also amends the Listed Buildings Act 1990 by empowering LPAs to issue temporary stop notices where either works to a listed building are being undertaken without listed building consent or without complying with conditions in the listed building consent. An LPA may issue a temporary notice if, having considered the effect of the works on the character of the building as one of special architectural or historic interest, it finds that it is expedient that the works (or part of them) are stopped immediately. A LPA already has the power to issue temporary stop notices for breaches of planning control; in effect the LURA extends these powers to breaches of listed building control.
A temporary stop notice ensures an immediate halt to works that threaten the special architectural or historic character of a listed building. If a person fails to comply with a temporary stop notice, they may be found guilty of a criminal offence and will be liable for a fine (the amount of which will be determined by the court who must have regard to any financial benefit obtained or likely to be obtained).
Defences
Two statutory defences are available to individuals with an interest in the building. The first defence requires the person to show that they did not know, and could not reasonably have been expected to know, of the existence of the temporary stop notice. Alternatively, the second defence requires the person to satisfy all of the following requirements:
- That works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;
- That it was not practicable to secure safety or health or the preservation of the building by works of repair or works for affording temporary support or shelter;
- That the works carried out were limited to the minimum measures immediately necessary; and
- That notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.
Compensation
A person with an interest in the building may be entitled to be paid compensation by the LPA for any loss or damage caused by the direct effect of the temporary stop notice, provided the claim is made within the prescribed time and manner. Compensation will only be available where either:
(a) The works specified in the notice do not comprise works to a listed building undertaken without listed building consent or without complying with conditions in a listed building consent; or
(b) A LPA withdraws the temporary stop notice (except in circumstances where a listed building consent has been granted authorising the work).
These provisions will mean that LPAs will consider carefully whether or not to serve a temporary stop notice.
Removal of compensation for building preservation notice
The LURA compels authorities to consult with the Historic Buildings and Monuments Commission for England (Historic England) before serving a building preservation notice.
The LURA removes the right for those in England to claim compensation for loss or damage caused by service of building preservation notice (the right to compensation continues to exist for those in Wales).
