1 May 2019 – An historic date for listed buildings

Historic Environment Scotland has recently published a series of new guidance documents which come into effect from 1 May 2019. Those guidance documents are:

• Historic Environment Policy for Scotland (“HEPS”);
• Managing Change in the Historic Environment: Asset Management (the “Asset Management Guidance”);
• Managing Change in the Historic Environment: Demolition of Listed Buildings (the “Demolition Guidance”); and
• Managing Change in the Historic Environment: Use and Adaptation of Listed Buildings (the “Use and Adaptation Guidance”).

These documents will be material considerations in respect of applications and appeals for planning permission for development which may affect the historic environment, as well as applications and appeals for listed building consent. They will also be relevant to other decisions affecting the historic environment.

Historic Environment Policy for Scotland

HEPS takes a different approach to the document it replaces, the Historic Environment Scotland Policy Statement (“HESPS”), and the predecessor to HESPS, the Scottish Historic Environment Policy (“SHEP”). It contains six high level policies, in contrast to the more detailed policies of HESPS and SHEP.

Examples of the high-level policies include:

• HEP1: “Decisions affecting any part of the historic environment should be informed by an inclusive understanding of its breadth and cultural significance”;
• HEP2: “Decisions affecting the historic environment should ensure that its understanding and enjoyment as well as its benefits are secured for present and future generations”; and
• HEP4: “Changes to specific assets and their context should be managed in a way that protects the historic environment. Opportunities for enhancement should be identified where appropriate.

If detrimental impact on the historic environment is unavoidable, it should be minimised. Steps should be taken to demonstrate that alternatives have been explored, and mitigation measures should be put in place.”

One of the other changes in HEPS is the increased prominence given to the cultural significance of sites and the places. The definition of cultural significance in HEPS is very broad, which allows scope for debate. It remains to be seen how cultural significance will interact with the key statutory considerations for historic assets, such as the “special architectural or historic interest” of a listed building.

The Asset Management Guidance

The Asset Management Guidance is a new introduction to the Managing Change series and provides guidance to public bodies and others with large estates which have multiple historic assets. It sets out how consideration and management of the historic environment should be factored into an asset management strategy.

Recommendations for owners and asset managers in the Asset Management Guidance include:

• using specialist conservation consultants and practitioners to prepare historic building records and surveys as well as advise on alterations or repairs;
• undertaking regular condition surveys and using such surveys to prepare and implement a programme of repairs, maintenance and preventative conservation;
• using every endeavour to ensure a building is not included on the Buildings at Risk Register; and
• working imaginatively to find new uses or identify appropriate management regimes for redundant buildings.

The Demolition Guidance

The Demolition Guidance restates the strong presumption in favour of retaining listed buildings and advises that demolition of a listed building is a last resort and will only be justified in exceptional circumstances. The Demolition Guidance largely retains the four circumstances in which the “total or substantial loss of a listed building” could be justified under HESPS. In summary, those circumstances are:

1. The building is no longer of special interest.
2. The building is incapable of meaningful repair.
3. Demolition of the building is essential to delivering significant benefits to economic growth or the wider community.
4. The repair and reuse of the listed building is not economically viable and has been marketed to potential restoring purchasers for a reasonable period (normally at least six months), at a price reflecting its location and condition.

One notable change from the position in HESPS is in relation to the justification that the building is no longer of special interest. Previously, applicants would submit their applications for planning permission and/or listed building consent and, as part of the consideration and determination of the application, it would be considered whether the building is no longer of special interest. However, HES is now recommending that owners should seek a review of the listing before submitting an application, noting that listed building consent is not required for a building that has been de-listed.

This change in approach is unlikely to be welcomed by developers and owners of listed buildings. The Demolition Guidance suggests that HES aims to complete their review within six months, although will consider requests for a shorter timescale on a case by case basis. In many cases, developers will still need to submit applications for planning permission and conservation area consent even if a listed building included in a project is de-listed. It is also not unusual for proposals to involve the demolition of one listed building and the alteration of another, which would still a require an application for listed building consent for the alteration works where the building to be demolished is de-listed.

The previous approach allowed for all these issues, including whether the building is still of special interest, to be considered together as part of the application process. It also allowed developers to argue that demolition was justified on more than one ground, such as grounds 1 and 3 above. The approach proposed by HES would, in some cases, see a two-stage process which has the potential to extend the overall approval process for development of listed buildings, a process which is already complex and often protracted.

The Use and Adaptation Guidance

The Use and Adaptation Guidance provides guidance to applicants and decision-makers when there are proposals to keep a listed building in use, bring a listed building back into use or make alterations to a listed building. Whereas HESPS set out four considerations which were to be taken into account when an alteration would have an adverse impact on special interest, the Use and Adaptation Guidance takes a higher-level approach which highlights the benefits of keeping listed buildings in use. It even suggests that those involved in the process need to avoid being too cautious when looking at the options to save a building.

Points to note in the Use and Adaption Guidance include the following:

• HES state that we need to make sure listed buildings have a long-term future if we want to benefit from them in the long-term, and for a building to stay in use over the long-term change will be necessary.
• The Use and Adaptation Guidance provides that proposals that keep buildings in use or bring them back into use should be supported provided they do the least possible harm to the special interest of the building.
• It is recommended that owners consider all options to allow the continued use of a listed building and a solution may involve one, or a mix of, minimal intervention, adaptation, extension, selective demolition and enabling development.
• When trying to find a new use for listed buildings, the Use and Adaptation Guidance highlights the advantages of a planning brief which sets out what is likely to be achievable for the site. when marketing to prospective purchasers.
• The Use and Adaptation Guidance also highlights that, where there are multiple buildings on a site, it can be worth considering whether the removal of less significant buildings can be justified with a view to making the whole site more attractive.

Conclusions

When viewed as a whole, many of the ‘tests’ and criteria that needed to be satisfied in relation to listed buildings under HESPS will still need to be satisfied under HEPS and the associated Managing Change documents. However, there are some notable differences including the increased prominence of the cultural significance of historic assets, the approach to justifying the demolition of a listed building on the basis it is no longer of special interest and the considerations which apply to proposals for the alteration or adaptation of listed buildings.