Line to take - LTT157 - Listed Buildings
- FOI/EIR: EIR
- Section/Regulation: reg 2
- Issue: Listed Buildings
- Source: Policy Team; DN
- Details: DCMS (DN — 19 November 2007); DCMS (DN — 9 July 2008)
- Related Lines to Take: LTT80, LTT82
- Related Documents: FS50122983 (DCMS), FS50122058 (DCMS),
- Contact: HD
- Date: 06/08/2009
- Policy Reference: LTT157
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Requests for information which relate to the decision of whether or not to list a building should be dealt with under the Environmental Information Regulations rather then FOIA.
In relation to requests for information on listed building planning consent applications and decisions — the nature of the application will determine the regime under which the request should be considered.
Section 1(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the “Planning Act”) states the following:
- “s1(3) In considering whether to include a building in a list.. .the Secretary of State may take into account not only the building itself but also-
- (a) any respect in which the exterior contributes to the architectural or historic interest of any group of buildings of which it forms part; and
- (b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building”.
The Department for Media, Culture & Sport (DCMS) website (*1) comments:
- “The Secretary of State uses the following criteria when assessing whether a building is of special interest and so should be added to the statutory list:
- Architectural interest - A building must be of importance in its architectural design, decoration or craftsmanship; special interest may also apply to nationally important examples of particular building types and techniques (e.g. buildings displaying technological innovation or virtuosity) and significant plan forms
- Historic interest - A building must illustrate important aspects of the nation’s social, economic, cultural or military history and/or have close historical associations with nationally important people. There should normally be some quality of interest in the physical fabric of the building itself to justify the statutory protection afforded by listing
'Further detail on the Principles of selec tion for listing buildings is set out in Planning Policy Guidance Note 15: Planning and the Historic Environment (PPG15), which was updat ed in March 2007 by local authority planning circular” but in summary other factors to consider include: age and rarity, aesthetic merits, selec tivity, national interest and state of repair.
The following is taken from the English Heritage website
- “The older a building is, the more likely it is to be listed. All buildings built before 1700 which survive in anything like their original condition are listed, as are most of those built between 1700 and 1840. The criteria become tighter with time, so that post-1945 buildings have to be exceptionally important to be listed. A building has normally to be over 30 years old to be eligible for listing.
Listing ‘protection’ covers the whole buildings i.e. both externally and internally, even if the object of architectural or historical interest for which the building is listed is an internal feature. It also generally includes any object or structure fixed to the building, or buildings and structures located within its curtilage (the enclosed area immediately surrounding the building).
However the English Heritage website goes onto say:
- “…Listing does not freeze a building in time, it simply means that fisted building consent must be applied for in order to make any changes to that building which might affect its special interest. Listed buildings can be altered, extended and sometimes even demolished within government planning guidance. The local authority uses listed building consent to make decisions that balance the site’s historic significance against other issues such as its function, condition or viability”.
The Planning Act states as follows:
- “s7 …no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised
- s9(1). If a person contravenes section 7 he shall be guilty of an offence”.
Section 9(4) confirms that anyone found guilty faces imprisonment and/or a fine.
The Commissioner has previously issued two EIR decision notices on the Department for Culture, Media and Sport on this topic:
- FS50122983 (19 November 2007) — the complainant asked for all paperwork concerning the decision not to list the Walter Bodmer Building
- FS50122058 (9 July 2008) — the complainant asked for all paperwork regarding the Minister of Culture’s issuing of a certificate of immunity from listing in respect of Borthwick Wharf in Deptford. (N.B. This case was appealed to the Information Tribunal albeit not on the grounds of the regime applied).
In response to both cases, the DCMS indicated that whilst they would not appeal the regime used to determine this case, they did want to comment as follows:
- “… we remain strongly of the view that the information in this case - .... — and information in general about whether or not to list buildings of special architectural or historic interest, is not environmental... The listing process has no direct impact on the environment; it merely identifies a building as being of special interest. Once a building is added to the statutory list, it is then brought within the consent system... We accept that the decision as to whether to grant consent for works may have an impact on the environment and as such, is likely to fall within regulation 2(1)(c)...”.
The Commissioner’s Approach
LTT80 (“defining environmental information”) states that it is not necessary for the requested information itself to have a direct effect on the environment in order for it to be environmental information. Further the line states as follows:
- “…to define as environmental information under 2(1)(c): "
- the information itself must be on a measure or activity
- the measure or activity (not the information itself) must affect or be likely to affect the elements and factors in 2(1)(a) and (b).... "
LTT82 (“any information on”) considers planning decisions and states the following:.
- “…it is not necessary to say that the decision (to approve or refuse) planning permission is itself a measure affecting or likely to affect the factors or elements in 2(1)(a) or (b). lt will be sufficient to establish whether the particular planning regulation under which the decision has been made is a measure affecting or likely to affect the factors and elements in 2(1)(a) and (b) or designed to protect those elements. lf it is, then the decision and the related planning application becomes environmental information because they are information on the implementation of the particular planning regulation in question...”
Applying this approach here, the Commissioner finds that the listing process which is dealt with under Part I, Chapter I (entitled “Listing of Special Buildings”) of the Planning (Listed Buildings and Conservation Areas) Act 1990 is an administrative measure which is likely to affect the environment. This is so regardless of whether the decision-making process leads to the building being listed or not:
The decision is made to list the building
Once a building is listed, listed building planning consent must be obtained before carrying out any alterations or extensions. The Planning Policy Guidance 15 (*3) states that:
- “....planning is also an important instrument for protecting and enhancing the environment in town and country, and preserving the built and natu ral heritage. The objective of planning processes should be to reconcile the need for economic growth with the need to protect the natu ral and historic environment” (para 1 .2).
The Guidance goes on at para 3.3 to say:
- “There should be a general presumption in favour of the preservation of listed buildings, except where a convincing case can be made out... .for alteration or demolition. While the listing of a building should not be seen as a bar to all future change, the starting point for the exercise of listed building control is the statutory requirement on local planning authorities to ‘have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses’ (section 16)”.
In relation to the possible demolition of listed buildings, the Guidance says as follows:
- “…the Secretaries of State would not expect consent to be given for the total or substantial demolition of any fisted building without clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses, and these efforts have failed; that preservation in some form of charitab le or community ownership is not possible or suitab le (see paragraph 3.11); or that redevelopment would produce substantial benefits for the community which would decisively outweigh the loss resulting from demolition” (para 3.17).
The preceding paragraph of the Guidance confirms that these ‘controls’ have “been successful in recent years in keeping the number of total demolitions very low”.
Thus, the decision to list a building means that the building is protected from unauthorised alteration or demolition and that any decision to allow such activities is based on an assumption in favour of preserving the building, land or landscape which affects or is likely to affect the environment.
The decision is made not to list the building
The decision not to list a building affects or is likely to affect the environment as without the listing ‘protection’, buildings, land and landscape can be completely altered, extended or demolished.
Thus, the Commissioner maintains his view that information on the listing process (including the decision on whether or not to list a building) is information on an administrative measure which is likely to affect the elements in Regulation 2(1)(a), namely land and landscape (to include urban and built-up landscapes).
Listed Buildings Planning Consent
Once a building is listed, then listed building planning consent is required before any alteration, extension or demolition can be carried out. This planning process is dealt with under Chapter II of the Planning (Listed Buildings and Conservation Areas) Act 1990 (entitled “Authorisation of Works affecting Listed Buildings”). Listed building planning consent is required for both external works (i.e. demolition, changing the paint colours of exterior features, putting up a satellite dish, installing a fire escape) and but also internal works (i.e. covering over decorative plasterwork or primitive joinery, removing an internal staircase or destroying evidence of an old doorway). Planning applications take into account the extent to which any proposed alteration or extension would affect the special interest for which the building was listed.
Given that Chapter II of the 1990 Act covers both external and internal works (which would be unlikely to impact on the environment), then requests for information which fall under Chapter II cannot automatically be dealt with as environmental information, unlike information which falls under Chapter I. Instead, requests will need to be considered on a case-by-case basis to consider whether the application is information on a measure which is or is not likely to affect the environment, for example, where the special interest feature is a sixteenth century internal door, a request for information on an application to remove the internal door is information on a measure which is unlikely to affect the environment whereas where the special interest feature is an external timber window, then a request for information on an application to block up the window is information on a measure which is likely to affect the environment.
In addition to requiring listed building planning consent, it may also be necessary to obtain planning permission and/or building regulation approval all for the same work. External works may require planning and listed building consent. However if the proposed work is entirely internal, it is unlikely that planning permission would be required (unless the proposal is to build a basement) although listed building consent and building regulation approval is likely to be required for even quite minor internal alterations.
In such cases, it will be necessary to consider under which measure the application is being considered and whether the particular requested information falls under the FOIA or the EIRs.