By Mark Challis, Bircham Dyson Bell
6 May 2010
6 May 2010
PPS5 was issued by DCLG in March accompanied by a 54 page practice guide produced by DCLG, English Heritage and DCMS.
The new PPS cancels both PPG15 and PPG16.
The draft version of the PPS (then draft PPS15) was issued jointly by DCLG and DCMS and received a fair amount of comment and indeed criticism from a number of organisations including the HTF and the RTPI, both of which described the draft as “not fit for purpose”.
In the style of PPSs the document is short, certainly in comparison with PPG15, but there is a lot of related information in the accompanying practice guide which itself refers to various other documents, with the promise of more to come. For the practitioner having to apply the policy in the light of the guidance and having to gather together quite a few documents to do so, a short PPS may not be a step forward.
At first glance PPS5 does not look very different from the draft. The structure of the document is largely unchanged with the policies grouped under a number of main headings, separating policies dealing with plan making from those concerned with development control or “Development Management”.
At second glance it can be seen that the wording of the document has been tightened up, meeting criticisms made of the draft, particularly, for example, of the way in which the draft seemed to elevate the standing or potential standing of non designated assets. The result is a much more measured affair.
One of the key features of the new guidance is that it broadens the scope of heritage assets to which it applies in comparison with PPG15. The term “heritage asset” is used to encompass all “valued assets of the historic environment” and extends beyond buildings to sites, places or landscapes positively identified as having a degree of significance meriting consideration in planning decisions. Accordingly the policies in the PPS distinguish between designated assets, which include those elements formally recognised in law (such as listed buildings, conservation areas and even elements such as registered battlefields) and non designated assets, such as locally listed buildings.
A failure in some parts of the draft PPS to distinguish between designated and non designated assets in policies purporting to protect the historic environment caused some concern, not least from developers worried that schemes could be delayed or thwarted on account of heritage assets seen as significant in heritage terms by local communities but not subject to any form of formal recognition in law.
To comment briefly on the development management policies (HE6 to HE12):
HE6 concerns the information that applicants should provide where heritage assets are affected, in the design and access statement where one is needed. The requirement to provide a description of the significance of the asset has been toned down – it is made clear that the level of detail need only be proportionate to the importance of the asset. Policy HE 6.3 says that LPAs should not validate applications where the extent of the impact on the significance of any heritage asset affected cannot be understood. The practical guide refers to various documents which can assist in this process.
HE7 covers all heritage assets (designated or not) and sets out the matters that the LPA ought to take into account in order to assess “significance”. Significance is a key term in the new PPS5 and is defined as “the value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic”. Note particularly the reference to “artistic” interest – not a term found in planning legislation.
HE8 concerns non designated assets and states that the effect of proposals upon them (or their setting) is a material planning consideration, but that generally such assets should be identified in pre application discussions
HE9 is at the heart of PPS5 in that it deals with applications affecting designated assets. Unlike the draft there is a clear presumption in favour of the conservation of designated assets. Policy HE7 refers to the desirability of sustaining or enhancing significance, but the presumption in HE9 refers to “conservation”. Accordingly substantial harm to a designated heritage asset should result in a refusal unless it can be justified by reference to the tests in HE9.2 which include tests where it is claimed that an asset has no viable use that will enable its conservation (a claim to be substantiated by market testing; about which further material is provided in the practical guide). It is made clear that substantial harm to or loss of assets of the highest significance, including grade I and II* listed buildings/parks and gardens, scheduled monuments, world heritage sites and protected wreck sites and battlefields should be “wholly exceptional”
HE10 deals with development affecting the setting of designated heritage assets. The practical guide notes that English Heritage is providing further detailed advice on the issue of setting.
HE11 contains a policy dealing with enabling development – the first national level policy on this complex subject. For some years English Heritage has had its own policy statement on the subject, upon which HE11 is based but does not wholly follow. HE11 sets out matters to be taken into account whereas the EH policy contains a list of criteria to be met.
HE12 is concerned with the recording of information relating to heritage assets – which should form part of the relevant historic environment record. Plainly recording of an asset is of particular importance in those cases where substantial or total loss has been justified.
The new PPS has been issued notwithstanding that there is no heritage protection bill on the horizon at the moment and that it draws upon some of the terminology of the Draft Heritage Protection Bill of 2008. Whether or not it will eventually accompany new legislation for the historic environment remains to be seen. In any event the PPS will doubtless be referred to in countless committee reports and planning appeals.
Note: A seminar will be held in June to expand this topic and offer support and guidance to HTF Members