Amendment 243

Part of Levelling-up and Regeneration Bill - Committee (10th Day) – in the House of Lords at 3:19 pm on 20 April 2023.

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Photo of The Earl of Lytton The Earl of Lytton Crossbench 3:19, 20 April 2023

My Lords, I will speak to Amendment 245—a probing amendment—in my name and that of my noble friend Lord Devon. Unfortunately, my noble friend cannot be here today due to other pressing matters. I must first declare my ownership of two listed buildings and the occupation of a third. I have also acted professionally as a chartered surveyor who has surveyed many listed and unlisted buildings and structures where works were proposed. I am very grateful for the support and input of the CLA, of which I am a member, and of Historic Houses and the Listed Property Owners Club. I am particularly grateful for, as it were, an introduction by the noble Baroness, Lady Hayman of Ullock. It was rather unexpected, because I did not think that it would necessarily be a matter that her party would relate to in those terms.

I acknowledge the importance to the nation of protecting its heritage. When the listing of buildings first came about in, I think, the 1950s, it carried with it an obligation to seek consent for works that affected the character of a listed building. It was not originally the case that effects on character meant that every alteration required consent. However, over the years, because the citations for listing and the descriptions of the matters of importance were, to put it bluntly, minimalist, that is how it has come to be operated. It has now almost become the norm for common periodic maintenance and repair to be caught by a demand for formal consent—things which, for any other unlisted building or structure, can be done without any formality.

A listed building application is not a particularly simple science: it requires a formal submission with drawings, sample materials and so on. Statements of heritage impact incur no small measure of cost, not to mention frequent inordinate delays in getting a determination. I speak from professional experience on that. I acknowledge, though, that there is no fee for making a listed building application—thankfully, in the context of what I have just explained. The idea persisted, however, that flexibility for public administrative purposes justified the appropriation to the public interest of overriding control of historic environments and, further, that this was more important than clarity for owners—or planners. However, I acknowledge that, in many instances, historic buildings, features and environments that would otherwise have been lost have been preserved by the building listing process, while unprotected ones have been lost.

What constitutes the legitimate public interest in this matter is something of constant evolution; it may be contextual, whereby legal constructs, such as curtilage, setting, attachment of artefacts and so on must be weighed up with important associations, past occupiers and events. If we overlay on to this the fact that nearly every listed building or structure of any significant age, including some parks and gardens, has undergone changes due to the inconsistently sympathetic or unsympathetic actions of successive owners and that, in a majority of cases, the listing process fails to capture the construction and management history of the item in question, it is easy to see the outcome.

Moreover, I must say that, in my experience, the competence of personnel typically involved in some public sector determination of historic building attributes is often as patchy as their affordability to local government. I know of local authorities that do not have their own in-house people; the in-house people were, in my view, the salt of the earth, but they do not have them any more. They outsource so many days a month to an external contractor, who comes in and out and may not have any detailed understanding of vernacular features.

I come to the point of Amendment 245. When an owner acts in good faith with a building that they know is not listed and not in a conservation area and sets about carrying out works that they would be entitled to do under the prevailing laws—and, it should be said, possibly under a permitted development—it matters if, unexpectedly, the authority decides to stop works on the grounds of a previously undisclosed, unrecorded and formally unnotified, but deemed priority, cultural interest by serving a building preservation notice, thus bringing works to a halt for six months.

This may sound like a bit of semantics, but I will mention it anyway. The “Listed Buildings Act” referred to in Clause 98 of the Bill is, I understand, shorthand for the Planning (Listed Buildings and Conservation Areas) Act 1990. Perhaps, at some stage, that could be corrected.

Under the current rules in Section 29 of that Act—I am not going to go into this in extensive detail—there is a provision for:

“Compensation for loss or damage caused by service of building preservation notice”.

It applies

“where a building preservation notice” has been served and

“ceases to have effect without the building having been included in a list” of protected buildings. One might say that this has the potentially perverse effect that, rather than getting yourself into trouble by not including it on a list, you include on the list all sorts of things that are perhaps of dubious merit. But I leave that to one side. It goes on to say that an owner who is affected by this in such a way is

“entitled to be paid compensation by the local planning authority in respect of any loss or damage directly attributable to the effect of the notice”.

Then it describes how the loss and damage might be payable, including

“a sum payable in respect of any breach of contract”.

The rationale is clear: if a local authority proceeds without carefully considering its grounds for listing a property as being of architectural or historic interest and in doing so ultimately concludes that it should not be listed, but the process occasions loss to the owner, there is entitlement to compensation for that loss. As I say, perversely this arrangement might lead to unforeseen outcomes, such as including things that should not be on the list, but bear in mind that the owner may be caught in the middle of a contract of works that might be a matter of recurring repair and refurbishment and, as I say, could be permitted development. So they are clearly vulnerable at that stage, and most people would consider that the reasonable enjoyment of one’s property, without the intervention of unsubstantiated statutory powers, should be compensated as a matter of basic rights to the reasonable enjoyment of one’s property. Recognising, however, that local government is acutely underresourced to deal with heritage matters, I note that it appears to have been an object of policy of successive Administrations to pass the risks and costs to owners rather than to internalise them within the public domain, notwithstanding the questionable economic justification or social justice of so doing.

I acknowledge that some minds within the Government’s heritage adviser, Historic England, did at least consider an alternative approach. That was to provide a form of indemnity insurance against claims arising from building preservation notices. This got as far as a pilot study, which had the intention of providing practical guidance to forward policy; however, the promised report that was supposed to be the outcome of this exercise has never yet seen the light of day and there has been no subsequent discussion or debate on the matter. Yet here we are, faced with Clause 98, which purports to remove the right to compensation. The only justification I can find, having made some inquiries of people with closer links to local government than I have, is that it was seen as being handy to have. If that is the justification, I do not think it is good enough. It would, to my mind, have the perverse outcome of facilitating speculative and wholly unjustified interventions by local authorities without need for demonstrable grounds, and with that the denial of fair and equitable treatment of owners where it can be shown they were needlessly and adversely disadvantaged.

I remind noble Lords that Clause 98 does not apply to the situation in Wales. I assume that the current compensation provisions there remain intact. This seems, at best, a tad asymmetric. That is the point of principle here, which is why Amendment 245 sets out to put the cart back behind the horse, where it belongs, so that the Secretary of State shall first consider and consult on the outcome of the pilot scheme before Clause 98 can be brought into force.

To conclude, I have two points. I ask the Minister for a reasoned justification for Clause 98, because I have not seen one. But I cannot entirely leave the matter there without noting that this is not the only instance in the Bill where the overriding of private property rights in the public interest, without proper safeguards, suggests an infringement of human rights legislation. I further understand that the Joint Committee on Human Rights has not commented on the Bill, which is why I have drawn some of the other instances, but not this particular one, to its attention. It does, however, cause me to further ask the Minister, in the light of my explanations, by what metric his noble colleague felt able to certify HR compliance of the Bill, which appears on its title page. I beg to move.