C O N T E X T 1 3 4 : M A Y 2 0 1 4 47 Act 1990. It added section 1 (5A), so that from July 2013 list entries could exclude areas of a site or a building from the legal protection. ‘…An entry for a building situated in England may provide (a) that an object or structure mentioned in subsection (5)(a) or (b) is not to be treated as part of the building for the purposes of this Act; (b) that any part or feature of the building is not of special architectural or historic interest.’ Areas excluded are either identified by the National Heritage List for England (NHLE) map (an increase in the importance attached to the plan of the site) supported by the text, or are set out in the list entry. For example, Kesteven and Grantham Girls School, Grantham, in Lincolnshire, was listed in 2013 at Grade II. Being the school where Margaret Thatcher was head girl, a good deal of its significance lies in the historical interest of the association with her. This compensated for the detrimental effect of changes to the building. Using ERRA changes, English Heritage was able to exclude from protection modern additions to the site, which had no interest, confining protection to the area shown on the NHLE plan. In this case there is, therefore, no listed building curtilage, in accordance with section 1(5)(a) of the 1990 Act. Where the excluded parts are internal, applying section 1.5A(b) of the 1990 Act, the exclusions are described in the list entry. Thus the very recently amended list entry for Reading Gaol contains the following in the description, where the exclusions are given an asterisk that is subsequently explained with a footnote. ‘…The pavilion has been replaced with a modern prefabricated cabin* (not of special interest). In the basement under A wing, the layout of the former munitions store is still legible, despite the inserted ceiling* (not of special interest) and the demolition of the access tunnel… Footnote: *Pursuant to section 1(5A) of the Planning (Listed Buildings and Conservation Areas) Act 1990, it is declared that these aforementioned features are not of special architectural or historic interest.’ Although nowadays we would want more detail in the Canterbury Cathedral list entry, in part the potential benefits of brevity still hold true. Over prescription in applying exclusions might be unworkable if not handled carefully. English Heritage will not recommend applying section 1(5A) of the 1990 Act unless the case is clearcut and seemingly beyond doubt. Recent, substantial additions to a site are obvious areas for exclusion, as are extensive modern partitions. It is not practicable to pick out details, such as the occasional modern door handle or light fitting. Similarly, excluding features in order to obviate the need for listed building consent but which would require considerable intervention for works to them (modern concrete lintels or window frames, for example) seems also not the right way to go. In addition, it is worth bearing in mind that listed building consent might still be required when works to excluded sections affect listed fabric. Exclusions do not override broader considerations, like setting or conservation area protection, but they will help to provide clarity over what is truly significant. Requests made to English Heritage for amendments to list entries in anticipation of applying the new provisions are subject to the same acceptance criteria as English Heritage now applies to all listing applications: threat, relevance to National Heritage Protection Plan projects and evident significance or benefits to the management of the building. The recent tweaks to the 1990 Act have also allowed applications to be made for a certificate of immunity from listing (COI) at any time. Section 6 now reads:‘The secretary of state may, on application of any person, issue a certificate stating that the secretary of state does not intend to list a building situated in England.’ Previously, applications could be made only if there was a current application for planning permission, or an extant permission. It is expected that numbers of COI applications might increase, although it seems likely that on the whole applicants are still likely to have an interest in the future of the site in planning terms. For the applicant, the benefit of a granted COI lies in the provision of certainty over the lack of special interest. For English Heritage, assessments for COI require absolute confirmation that no corner of the building in question contains anything of special interest, because once issued the immunity can not be undone for five years. Because of this, the amount and quality of information that needs to be submitted with a COI application is a key determining factor in enabling the application to be taken forward, and will act as a break on superficial applications for COIs. English Heritage very much supported these and other changes, brought in by the Enterprise and Regulatory Reform Act 2013 (ERRA). It can be expected that over time the application of section 1(5A) will gradually increase the number of sites where the issue of listed building curtilage has been resolved. However, with 500,000 listed structures, English Heritage’s limited resources will not allow updating of the designation base beyond new designations and discrete projects. So local authority determination of when curtilage applies is with us, for older designations, for a good while to come.The ERRA changes offer greater access to COIs for those who want certainty to plan for future works. Section 1(5A) of the1990 Act is already showing the benefits of being able to focus control on where it is appropriate, while being more clear where there is opportunity for the site or building to change. The NHLE plan for Kesteven and Grantham Girls School shows the listed part of the building. No other part is protected, and there is no listed building curtilage, in accordance with section 1(5) (a) of the 1990 Act. (Crown Copyright and database right 2012.All rights reserved. Ordnance Survey Licence number 100019088. British Crown and SeaZone Solutions Limited 2011. All rights reserved. Licence number 102006.006) Tony Calladine is acting head of designation with English Heritage
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