28 sary for works which have been completed or which are about to be carried out. The view of the Government is that the introduction of such a procedure would "not be appropriate for listed building control. It also introduces unnecessary complexity into the system and a confusing overlap with existing listed building controls" (Hansard, HL, 29 January 1991, col 668). This seems a curious view since, at least for alterations and extensions to listed buildings, the need for consent depends on whether the works "affect the character of the building" [P(LBCA)A 1990, s 7}. This is a formula that is highly subjective; and it would therefore seem to be particularly desirable that, for example, a builder could find out whether the planning authority would be likely to insist on consent being sought for the insertion of replacement windows; or chat a prospective purchaser can find out whether consent would be required to remove (or indeed to insert) a period fireplace. Nor is there any provision for issuing a "breach of condition notice" in relation to listed building consent, as is introduced for breaches of conditions on planning.permissions bys 2 of the 1991 Act. COMPENSATION One welcome amendment introduced by the 1991 Ace (ins 31) is the abolition of the right under s 27 of the P(LBCA)A 1990 to compensation for the refusal of listed building consent. This only ever applied where the works for which consent had been refused were alterations or extensions which did not need planning permission - but chat was of course precisely the type of small scale works where the need for listed building consent provided a valuable extra degree of control which was not available in the case of unlisted buildings. The repeal of s 27 (formerly s 171 of the TCPA 1971) is thus to be welcomed. This provision took effect in relation to any application for listed building consent made on or after 16 November 1990 [see PCA 1991, s 31(8)}. POWERS OF ENGLISH HERITAGE Almost the only provisions in the 1991 Act relating specifically to the 'heritage' are the additional powers given to English Heritage to prosecute any offence under either the P(LBCA)A 1990 or the Ancient Monuments and Archaeological Areas Act 1979, and to institute proceedings for an injunction to restrain any contravention of either of those Acts. This was introduced - under protest - in response to an amendment to the Bill moved by Lord Montagu (chairman of English Heritage). It is now to be found in s 29 of the 1991 Act, which amends s 33 of the National Heritage Ace 1983 (the Act which set up English Heritage in the first place). Section 29 also introduces a new s 89(3) into the P(LBCA)A 1990, to enable English Heritage to obtain information from landowners as to their ownership ecc of land, prior to serving notices and orders under chat Acc. OTHER AMENDMENTS What has become perhaps the most well known of the provisions in the new Act (s 26, introducing a new s 54A into the TCP A 1990) was ironically almost the last to be introduced - at report stage in the Commons. The new section concerns the sratus of the development plan, and introduces what is in effect a presumption in favour of the plan. This is not the place for a detailed discussion of s 54A, save to note chat most local and structure plans contain policies relating to listed buildings and conservation areas - albeit chat these are often little more than pious platitudes. The new presumption may thus provide further support for those attempting to resist unsuitable development proposals. A further provision of the 1991 Act replaces the old system of agreements under TCPA 1971, s 52, or under s 33 of the Local Government (Miscellaneous Provisions) Act 1982, with new 'planning obligations' (s 12, introducing new ss 106, 106A and 106B). This needs to be borne in mind by those seeking to bring about the repair of listed buildings with the use of such agreements - possibly in conjunction with an offer of grand aid - or the substitution for an outworn building in a conservation area of a suitable replacement. In particular, the news 106 (which came into force on 2 5 October 1991) enables a planning obligation to include positive as well as negative undertakings. Thirdly, the 1991 Act for the first time explicitly brings demolition within control (although the Cambridge CC v Secretary of State case made it clear that demolition was in fact always development anyway). This may have the incidental effect of lessening the pressure on local authorities to declare as conservation areas districts which are of no particular value. The 1991 Ace (in s 23) also introduces new powers relating to trees similar to the new enforcement provisions noted above (increased penalties for offences, injunctions, rights to enter land ere). These will be useful to control unsuitable works to protected trees, which are a key feature of many conservation areas. Section 24 of the new Act brings blinds and awnings within the scope of the Control of Advertisements Regulations - and thus (by virtue of TCP A 1990, s 222) outside the need for planning permission. Since such awnings will (at least under the present Regulations) often obtain deemed consent, they will effectively escape control, unless a special direction is made. Such blinds and awnings can be very detrimental to the appearance of some conservation areas, particularly village centres. New Regulations are expected towards the end of 1991, however, which may change this. Finally, there is a new provision, introduced bys 30(2) of the 1991 Ace, whereby an order as to coses may be made where an inquiry or hearing into an appeal against the refusal of listed building consent or conservation area consent does not take place after it has been arranged. There is however no power given to the Secretary of State to dismiss such appeals in case of delay, as there will be in future in the case of planning appeals (as a result of s 18 of the 1991 Act). MISSING PROVISIONS One or two other amendments made by the 1991 Act to the rules relating to planning permission are, unfortunately, not carried through to the listed buildings regime. There is thus no power to decline repetitive applications for listed building consent. Nor, more significantly, is there any tightening up of the power of local planning authorities to grant themselves listed building consent. The latter omission means that an authority can still grant someone else consent to carry out works to its own listed building, a state of affairs which would seem to be highly unsatisfactory. More generally, a number of amendments relating to listed buildings and conservation areas were moved during the debate on the Bill in the Lords. Baroness Birk, in introducing them, pointed our that such amendments were entirely within the scope of the bill, since heritage amendments had been included in almost all previous planning Acts (for example, the Local Government, Planning and Land Act 1980, and the Housing and Planning Act 1986). Indeed the proposed amendments were all non-controversial, and were intended merely to rectify one or more apparent infelicities of drafting in the law as it stands. However, the Government's response (delivered by Baroness Blacch) was totally unhelpful: Some of the amendments may give us food for thought at more leisure, while a couple strike chords as being points which we already have in mind, but for which we do not see this Bill as the right vehicle. We have, it is true, used the opportunity of this Bill to reflect in respect of listed buildings, so far as we consider appropriate, the changes relating to enforcement following the report by Robert Carnwath QC. It would have been illogical not to do so. Bue, by and large, this is not a Bill about listed buildings: it is one primarily about enforcement, controls over developCONTEXT 32
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