Context 153 - March 2018

C O N T E X T 1 5 3 : M A R C H 2 0 1 8 13 General scope of the exercise The Planning (Wales) Act 2020 will thus contain general, introductory provisions. It will then set out the procedure for preparing development plans (currently in Part 6 of the PCPA 2004, as significantly amended by the P(W) A 2015).The heart of the act will deal with development management: when planning permission is needed; how it can be obtained (applications, appeals); enforce- ment; and the provision of infrastructure (community infrastructure levy and planning obligations). Further provisions will deal with advertisements and protected trees; and supplementary and consequential matters such as minerals, statutory undertakers, and definitions. The new Planning Act will apply – just as the TCPA 1990 does at present – to development affecting listed buildings and conservation areas, just as to any other development. The Historic Environment (Wales) Act 2010 will then deal with the designation of the historic environment, repairs, grants, partnership agreements, and other supplementary matters. Duty to preserve the historic environment At present, there is a general duty on planning authorities to have special regard to the preservation of listed build- ings, their setting and their features of special interest, when considering planning applications and appeals affecting listed buildings – but not when exercising any other functions under the Planning Act. A similar duty applies to development affecting conservation areas. But no such duty applies, in either case, to functions under other legislation (such as the Highways Act). Nor is there any duty applying to scheduled monuments (which are equivalent in importance to listed buildings of Grade I and II*) or to world heritage sites (which are of such importance that their preservation should properly be the concern of mankind as a whole). The Law Commission is therefore provisionally pro- posing that a provision or provisions should be included to the effect that: 1 A body exercising any statutory function in relation to land affecting a historic asset must have regard to the desirability of preserving or enhancing the asset, its setting, and any features of special interest that it possesses; and 2 A body exercising functions under the Planning Code and the Historic Environment Code must have special regard to those matters. That would apply the duty to the carrying out of any statutory function under any act; but it would give special weight to the duty in relation to any planning function. And ‘historic assets’ could be defined so as to include world heritage sites, scheduled monuments, listed buildings, conservation areas, registered parks and gardens, and such other categories of land as theWelsh ministers may prescribe. Works affecting the historic environment At present, works affecting listed buildings may require either listed building consent (LBC) or planning permis- sion, or both. In general terms, demolition requires both types of approval. External alterations will require LBC, and will usually require planning permission (although they may be permitted by a development order). Internal alterations will require LBC but not planning permission. Works affecting the setting of a listed building will require planning permission but not LBC. Where two types of consent are required, that will involve two applications, leading to two committee reports, two decisions, two sets of conditions and, where appropriate, two appeals – and if no approval is obtained, two enforcement notices and two enforcement appeals. But usually both types of authorisation are forthcoming, or neither. It would in theory be possible for an authority to grant one and refuse the other, but that is rare. And the Planning Portal explicitly encour- ages applicants to apply for both planning permission and LBC in a single application. If the definition of ‘development’ were to be extended to include any works to a listed building that are likely to affect its character as a building of special architectural Dolbelidr, a Grade II* listed house in Cefnmeiriadog, Denbighshire (Photo: Llywelyn2000, Wikimedia Commons)