SCOTTISH HISTORIC ENVIRONMENT POLICY SERIES by kippen james

SCOTTISH HISTORIC ENVIRONMENT POLICY SERIES LISTING

ANALYSIS REPORT

National Policy Team Historic Scotland October 2007

CONTENTS 1. 2. 3. 4. 5. 6.

Introduction Methodology Breakdown of Responses Summary of Responses Other Issues Annexe A: Listing Consultation Respondees

Page 3 Page 4 Page 4 Page 6 Page 13 Page 14

ACKNOWLEGDEMENTS Historic Scotland would like to thank all those who responded to this consultation document and also the Built Environment Forum for Scotland for organising a workshop to gather stakeholder views on the draft SHEP document.

INTRODUCTION

1.1 This document fulfils the requirement for an analysis report set out in the Scottish Government’s good practice guidance on consultation. The objective of this report is to analyse and report on the responses made to the consultation on the Listing SHEP, not to set out Scottish Ministers’ comments on or responses to those suggestions. The inclusion of a comment or suggestion does not imply that any contribution is accepted as accurately characterising the actual policy position or operational practice. For example, some respondents suggested changes which are in fact already in place. Where we believe a reader of the analysis report might be misled as to the current policy position, we have provided a footnote giving more information. 1.2 The responses to the consultation process seemed to suggest that Historic Scotland (HS) should provide more information about the purpose and context of the SHEP series. The Scottish Historic Environment Policy (SHEP) series is a new series of documents which sets out Ministers’ policy for the historic environment and is intended to provide clearer policy direction for Historic Scotland. The SHEPs have the same authority as and sit alongside the Scottish Planning Policy series and other relevant Ministerial policy documents. The SHEPs when published in final form will replace the relevant sections of the Memorandum of Guidance on Listed Buildings and Conservation Areas 1998. 1.3 The SHEPs arise from a recommendation in the review of HS in 2004-05 that “[a]n Executive endorsed policy statement for the historic environment in Scotland should be developed in consultation with stakeholders…”. The Framework Document of 2004 sets out the role and responsibilities of Historic Scotland, and the respective roles of Scottish Ministers and the Chief Executive, who is accountable to Ministers for the operation of the agency. The SHEPs are mainly about the policies and roles of Ministers, although some operational matters are touched upon.

The SHEPs vary in content. SHEP 1: Scotland’s Historic Environment sets out strategic policy for the historic environment and provides a framework for the day-to-day work of organisations that have a role and interest in managing the historic environment. These include the Scottish Government, local authorities and the range of bodies that is accountable to Scottish Ministers, including Historic Scotland. 1.4

1.5 Other SHEPs deal in more detail with established areas of policy, such as Scheduling and Listing and the related consent processes, and for these subjects the SHEPs are intended largely to consolidate and clarify the status of existing policy, while providing an opportunity for public comment on a range of policy and some operational issues. Yet other SHEPs deal with less-developed areas of policy, such as Gardens and Designed Landscapes or Battlefields. These documents are more exploratory and the consultation versions will often also include more questions about operational matters. 1.6 The draft SHEP on Listing sets out Scottish Ministers’ policy on listing, the process that identifies, designates and provides statutory protection for buildings of ‘special architectural or historic interest’. 1.7 The consultation document was published on 26 March 2007 and the consultation period closed on 20 July 2007.

1.8 Approximately 350 copies of the consultation document were sent to a variety of organisations and individuals. A list of respondents is attached at Annex A. A total of 27 responses was received, representing a response rate of 8%. 1.9 A breakdown of responses is provided below. In most cases, responses formed the official response of the organisation. Responses from consultees who agreed that their submissions be made public are available at http://www.historicscotland.gov.uk/index/consultations/pastconsultations/responsetosheplisting.htm . 1.10 This SHEP asked some explicit questions about the operation of the Listing system, and some respondents made comments on operational matters. While the majority of responses were closely related to the subject of the consultation, others were not. Although they are not relevant to Ministerial policy, we have noted these responses at the end of the Analysis Section and, where appropriate, will respond to them, or note them for further consideration within Historic Scotland. Table 1: Responses to consultation by interest group

Number of Respondents

Local Authorities 10

Heritage Bodies 11

NDPBs1 2

Private Companies 1

Individuals Religious Groups 1 2

1.11 During the consultation period, Historic Scotland ran a workshop in conjunction with the Built Environment Forum for Scotland (BEFS). The workshop was attended by seven individuals and representatives of organisations with an interest in the process of Listing. Historic Scotland has received a report from this workshop (available at: http://www.befs.org.uk/issues.htm ) and although its findings are not included in this analysis report they will be used to inform Historic Scotlandâ&#x20AC;&#x2122;s consideration of the issues. 2.

METHODOLOGY

2.1 The response data were recorded, organised and summarised on a spreadsheet. A record was made of positive and negative responses and other issues raised. A frequency count was made of the overall number of responses by interest group and of the responses to each question. A qualitative analysis of the data was then carried out using this framework. The summarised data for each question were reviewed and key themes and contrasting views were identified. 2.2 It is important to note that the findings of the report are specific to the responses (few in number in this case) made to the consultation exercise and cannot reflect the weight or range of views likely to be found within the population as a whole. 3.

BREAKDOWN OF RESPONSES

3.1 In spite of the large number of documents distributed, only 27 responses were received. The responses do, however, reflect the views of a cross-section of interest groups in the heritage sector and beyond. Many of the responses received were very detailed, and in 1

Non-Departmental Public Bodies

some cases went beyond the scope of this consultation, as one religious group noted in its response: ‘ [the group] is conscious that a number of the points which it has made in this response go beyond Historic Scotland’s role in implementing current legislation and Ministers’ policy on listing’. Religious Group 3.2 Table 1 on Page 4 shows the distribution of responses received. 3.3 The consultation asked eight questions. A direct ‘yes/no’ response was possible for only one of the questions. The majority of questions were open-ended and invited respondents to explain their views on various aspects of Listing policy and practice. Each question elicited a range of responses, some of which expressed approval for existing policy or sought minor amendments or clarification, while others made suggestions which would require policy or legislative change. A breakdown of responses is provided below. Table 2: Breakdown of Responses to Questions Questions

1. Do you have any comments on the criteria set out in Annex A? 2. Would there be advantage in the creation of a Focus Panel to advise on themes in the selection of subjects for listing designation? If ‘yes’, please say why? 3. Do you have any comments on the role of the local authorities in the listing process? 4. Do you have any suggestions as to how Historic Scotland might improve its current policy regarding restraint where there is a live planning application, notably the fact that we can only list when there is a Building Preservation Notice (BPN) or the works are minor? 5. Do you have any comments on the issue of Certificates of Immunity from listing? 6. Do you have any comments on the use of BPNs? 7. Do you have any comments on the Scottish Ministers’ policies? 8. Are there any further matters which could usefully be addressed within this policy consultation?

Yes

Support for status quo

Suggestions for minor changes or clarification

Suggestions for change to existing policy

Question not answered

SUMMARY OF RESPONSES 1. Do you have any comments on the criteria set out in Annex A?

4.1 Twenty-two consultees responded to this question. Of those who responded, five were satisfied with the criteria set out for determining whether a building is of ‘special interest’ for listing. One heritage body said: ‘The listing criteria appear to be sensible and well-balanced’. Heritage Body 4.2 14 respondents made a number of suggestions for clarification or amendment. These suggestions included providing clearer definition of some of the terms used in the criteria, such as ‘state of repair’, ‘notable quality’ and ‘definite character’. Some respondents also felt that it would be helpful to have guidance on how the listing criteria were applied in practice. A number of respondents felt that further detail on the listing of interiors should be included in the SHEP. One respondent noted: ‘It would be worth highlighting that for some building types, the primary significance can be the interior design. Fixed decorative schemes should also be considered to include soft furnishings, where those are original and of interest’. NDPB 4.3 Three consultees made more substantial suggestions for change to existing policy. Some of these respondents expressed the opinion that full listing reports should be made available to owners as a matter of course and that the research on which the listing decision had been based should be provided so that building owners could understand the reasoning behind the designation. One respondent felt that a 30-year programme should not be adopted and that there should be a more systematic approach to listing - particularly of 20th century architecture - rather than ad-hoc responses to new development. Some responses argued that a more systematic approach would also reduce the possibility of lobbying by individuals unduly influencing Historic Scotland. 4.4 The consultation responses indicate that, in general, consultees were satisfied with the criteria. However, there was some support for more substantial change. This support was spread across the interest groups, but was more frequent among religious groups, private companies and individuals. A number of respondents expressed the view that there was a need to improve the transparency and consistency with which the criteria for listing are applied. 4.5 Some respondents made comments on operational practice. One expressed the opinion that a more fundamental assessment should be carried out into whether listing was achieving its objectives, while another felt that there should be a robust appeal procedure. One consultee argued that Historic Scotland listing team staff should be qualified architects, particularly when considering 20th-century buildings for listing2.

Historic Scotland does not consider that a professional qualification in architecture is more appropriate than, for example, a qualification in architectural or art history, history or archaeology.

2. Would there be advantage in the creation of a Focus Panel to advise on themes in the selection of subjects for listing designation? If ‘yes’, please say why. 4.6 Twenty responses were received to this question. Of those who responded, there was consistent support for the creation of focus panels. Eleven respondents to this question supported their creation, while two requested further clarification. 4.7 Respondents who supported the creation of focus panels to advise on themes for listing felt that thematic surveys promoted an expertly informed, consistent approach to listing. Some consultees reported positive experiences with thematic listing programmes both in Scotland and elsewhere. One respondent stressed that a programme of thematic listing should not be at the expense of the rolling programme of area-based re-surveys. One heritage body noted that there was also virtue in involving experts from outside Historic Scotland to help gauge the tenor of public opinion and reflect the public appreciation of listing: ‘It would be in keeping with public attitudes for HS to be seen to be open to external advice in such matters and a valuable insight into changing tastes and opinions’. Heritage Body 4.8 Some respondents requested further detail of the intended format of focus panels, and felt that much would depend on who would sit on the panel, what themes it would advise on and how much weight it would have in listing decisions. 4.9 Seven consultees - including local authorities and one private company - were not in favour of the introduction of focus panels. These respondents expressed the view that mechanisms already exist to draw in expert opinion where necessary, and one respondent suggested that Scottish Ministers and Historic Scotland should consult groups or individuals on proposals for listing, including thematic listing, where appropriate. Some respondents felt that, rather than one focus panel, there should be a number of focus panels to advise on different geographical areas or building types. 4.10 The balance of views was in favour of the creation of focus panels to advise on themes for listing. The majority of respondents felt that focus panels could help to promote a consistent approach to listing and would provide the flexibility to identify significant new building types as they emerged. Some respondents expressed the opinion that focus panels could help to eliminate perceived bias in the listing process. Those consultees who did not support the creation of panels argued that mechanisms already exist for seeking specialist advice where appropriate and that if the listing criteria are applied consistently there should be no requirement to conduct thematic surveys in addition to the re-survey programme. 3. Do you have any comments on the role of the local authorities in the listing process? 4.11 Twenty-one consultees responded to Question 3. Of those who responded, two supported the status quo while 14 made minor suggestions for changes to the role of local authorities. Some local authority respondents and one private company made suggestions which would necessitate a change to existing policy. 4.12 A view consistently expressed by both local authorities and heritage bodies was that there was a lack of resources within local authorities to support the listing process. Many

respondents felt that local authority Conservation Officers were over-stretched and that more funds should be dedicated to this role to ensure that each local authority had a Conservation Officer able to fulfil the authority’s statutory obligations. 4.13 Some respondents from both heritage bodies and local authorities suggested that guidance be produced to assist local authorities in nominating subjects for listing. One respondent suggested that the small number of nominations put forward by local authorities reflected the large number of buildings already listed. 4.14 Responses from local authorities consistently highlighted the role that authorities could play in providing local perspectives, knowledge and expertise to complement Historic Scotland’s national perspective. This view was echoed by a heritage body: ‘Local Authorities are very important to the listing process. Local Authorities are best placed to recognise local significance, identify buildings under threat and to appreciate how future local planning strategies may affect significance and vulnerability’. Heritage Body 4.15 Some respondents noted that better collaboration would require strong and consistent communication between Historic Scotland and local authorities. 4.16 Five responses made suggestions for more substantial changes to existing practice. A view consistently expressed was that a protocol should be developed for joint working on listing nominations between Historic Scotland and local authorities. One respondent argued that where a list re-survey was planned, Historic Scotland should publish its work schedule so that local authorities could programme staff workloads accordingly. There was also support for joint surveys: ‘There may be advantages to surveys being carried out on a joint basis to ensure that cover is comprehensive while maintaining a national standard’. Local Authority 4.17 This question highlighted a frequently expressed view that for local authorities to play a more constructive role in the listing process, better resources would be required, together with a closer tie-in between Historic Scotland’s listing agenda and local authority programmes for development and development control. 4. Do you have any suggestions as to how Historic Scotland might improve its current policy regarding restraint where there is a live planning application, notably the fact that we can only list when there is a Building Preservation Notice (BPN) or the works are minor? 4.18 Twenty-two consultees responded to this question. Of those who responded, four supported the current policy of restraint, five made suggestions for minor change or requested clarification, and thirteen made suggestions for substantial change to the policy. Support for change came from local authorities, heritage bodies, NDPBs and private companies. 4.19 The responses to this question have been broken down further to reflect the weight of opinion among different interest groups. This analysis is reflected in Table 3, below.

Table 3: Breakdown of responses to Question 4 by interest group.

Support for current policy of restraint Suggestions for minor change or clarification Support for policy change

Local Authority 1

Heritage Body 1

NDPB 0

Religious Group 1

Individual Private Company 1 0

TOTAL 4

4.20 The view was frequently expressed that it should be possible to list where a live application or current works led to the recognition or identification of features of interest in a building which had been unrecognised. Many respondents argued that the policy of restraint should be reversed or abandoned. One local authority noted: ‘The current Historic Scotland practice of restraint from listing where there is a live planning application (except where the local authority has served a BPN), appears to go against Scottish Ministers' responsibility for listing’. Local Authority 4.21 Some consultees felt that Historic Scotland should have the option to intervene where there was a live planning application and expressed the opinion that this might be more effective than the system of Building Preservation Notices (BPNs). A number of respondents supported the view that Historic Scotland should also have the power to serve BPNs, particularly in cases where local authorities did not have the resources or skills in-house to make a full assessment of a building's value and significance. 4.22 The concept of an ‘interim listing’ was suggested by some consultees, who proposed that the measure be used where there was clear justification, for example in cases where subjects were found to present unexpected and exceptional heritage value. 4.23 A response from a private company noted that some works which might have an impact on a listed or potentially listed building may not constitute development and would not be subject to planning consent. The response expressed the view that Historic Scotland should consider allowing other evidence of proposed works to act as restraint to listing in these circumstances. 4.24 Although the majority of responses supported substantial change to existing policy, and almost equal number of consultees argued for the status quo. Some respondents felt that the current policy was fair to applicants for planning permission and that it should not be modified. It was argued that rigorous area surveys should identify potential candidates for listing prior to any planning application being made. This view was supported by some local authorities, religious bodies and individuals.

4.25 A view was expressed by local authorities and religious groups that BPNs provided adequate protection for buildings which were discovered to have architectural or historical significance. Responses from heritage bodies and a private company highlighted the need to keep owners of candidate buildings informed of the process at every point. 4.26 This question elicited a range of views from across the interest groups. The weight of opinion favoured a change to existing policy but many responses recognised the difficulty of balancing the need for clarity and fair treatment for applicants for planning permission with the need to protect heritage assets. 5. Do you have any comments on the issue of Certificates of Immunity from listing? 4.27 Twenty consultees responded to this question. Of those who responded, seven supported the status quo, seven made suggestions for minor changes, while six made the case for a change to existing policy and the introduction of Certificates of Immunity. A breakdown of responses by group is provided at Table 4, below. Table 4: Breakdown of responses to Question 5 by interest group.

Against Certificates of Immunity In favour of Certificates of Immunity Neutral

Local Authority 3

Heritage Body 2

NDPB

Individual

Religious Group 0

TOTAL

Private Company 0

4.28 Most respondents were in favour of the introduction of Certificates of Immunity. Six respondents were against their introduction, while five were neutral. Consultees who argued against the introduction of Certificates of Immunity felt that Historic Scotland’s existing policy of restraint offered similar protection to the proposed Certificates. One respondent suggested that Certificates of Immunity could be a hostage to fortune and the view was expressed that their introduction would mean a substantial increase in workload for Historic Scotland without significant benefit to the system. One local authority respondent expressed concern over the system of Certificates: ‘Experience shows that the recognised relative merits of a building's historic and architectural value can change over a short time scale. In these terms it is not considered appropriate to introduce a system of Certificates of Immunity’. Local Authority 4.29 Those in favour of the introduction of Certificates Of Immunity argued that they would provide clarity for applicants, local authorities and Historic Scotland. One religious group noted:

‘Certificates of Immunity would reduce the uncertainty currently experienced by building owners undertaking work on a historic building which may be eligible for listing and they may, potentially, therefore increase investment in historic properties’. Religious Group 4.30 A number of responses stressed that any building for which a Certificate was proposed would have to be thoroughly researched first in order to gain as full an understanding of the building as possible. It was suggested by one heritage body that this should include recording and documentary research. 4.31 • • •

Other responses raised the following points: Certificates of Immunity should be issued in consultation with the local authority in question; if, during the period of the Certificate, evidence became available which was of such significance that warranted listing, this immunity should be withdrawn; Certificates of Immunity might be used more in large, commercial development proposals rather than small, ad-hoc or domestic cases and so would not on their own overcome the difficulties of listing in the face of planning applications.

4.32 The fact that opinion was divided on this question highlights the complex nature of the debate and the challenges in balancing the interests of all parties. 6. Do you have any comments on the use of BPNs? 4.33 Nineteen consultees made comments on this question. Of those who responded, eleven were content with the status quo or minor amendments to existing policy, while eight made substantial suggestions for change to the existing system of Building Preservation Notices (BPNs). 4.34 A view was expressed by many respondents that local authorities were reluctant to serve BPNs because they could be liable for the developers’ costs should the Scottish Ministers determine that the building was not of listing merit. Many respondents felt that the current situation placed the risk squarely with the local authority, and suggested that if the system of BPNs was to continue, it would be helpful if a formal protocol could be introduced whereby the local authority alerted Historic Scotland that it was considering serving a BPN in order to elicit formal support for this action. 4.35 Some heritage bodies and an NDPB suggested that Historic Scotland should have the power to serve BPNs, and a response from a private company argued that there should be a right of appeal against BPNs. 4.36 Two consultees expressed the view that alternative mechanisms could be used to address the compensation issues surrounding BPNs, such as interim listing or Certificates of Immunity. A view was expressed that in exercising power to serve BPNs, local authorities had to balance the potential benefits of development with the protection of the built heritage. 4.37 Some local authorities saw the BPN as a useful tool in clear cut cases where some indication of the outcome had been obtained from Historic Scotland. One religious group noted:

‘If listing criteria are applied consistently, there should be very few occasions where it is necessary to resort to a BPN’. Religious Group 4.38 The responses to this question indicate that there is some support for the existing system, but a number of consultees recognised that the use of BPNs presents challenges to local authorities and to building owners. 7. Do you have any comments on the Scottish Ministers’ policies? 4.39 Twenty-two consultees responded to this question. Of those who responded, two had no further comments, seventeen were satisfied or mostly satisfied with the current policy, making minor or drafting changes. One local authority respondent noted: ‘The principles …appear to be comprehensive and clearly expressed.’ Local Authority 4.40 Three respondents made suggestions for more substantial policy change, which are set out below: • • • •

provision should be made either for an ongoing review or a fixed periodic review of listing; introduce targets for the review of regional lists which could link in with development plan appraisals; there should be a presumption of care for the historic environment placed on local authorities; Historic Scotland should consult on a policy for evaluating risks to buildings.

8. Are there any further matters which could usefully be addressed within this policy consultation? 4.41 Twenty-two consultees responded to this question. Fifteen of those who responded made minor suggestions for additions to the SHEP, such as a commitment to promoting the benefits of listed buildings and the responsibilities of building owners, and to state as a duty Historic Scotland’s commitment to promoting best practice in the maintenance of listed buildings. One local authority respondent suggested that the SHEP highlight that: ‘In order to maximise the listing process, more funding needs to be made available to HS or local authorities to ensure that the buildings contribute to their localities, both in an environmental and economic sense’. Local Authority 4.42 One heritage body expressed the view that the document should include the role of special interest groups in the listing process. 4.43 Four respondents made suggestions for more far-reaching changes to the SHEP. An individual expressed the view that:

‘A policy must be in place to ensure that list descriptions are not produced without a thorough inspection of both the interior and exterior’. Individual 4.44 Some respondents suggested the SHEP include a process for representations and appeals, saying that a clear appeals process could result in greater acceptance of designations, arguing that professional judgement can be open to dispute, especially if the criteria for listing are open to interpretation or can change with time. 4.45 A heritage body suggested that a Statement of Significance should be provided with each list entry as a matter of course, while a private company expressed the view that both the original suggestion for listing and the extent and date of survey or inspection should be made public. The respondent suggested that the list description should carry some statutory weight and that it should be subject to consultation. 4.46 The responses to this question highlight themes of creating a more transparent and accountable process for listing, and show support for Historic Scotland’s extensive work in creating a more transparent and accountable process. Many of the comments pertain to procedures already in place, and confirm the value of Historic Scotland’s programme for targeting resources to outreach and information provision. 5.

OTHER ISSUES

5.1 The consultation elicited a range of views on existing policy and practice suggestions for change. The recurring issues highlighted by respondents are summarised below: • • • • • • •

the need to ensure transparency and consistency in the application of listing criteria; the need for there to be an appeal system so that professional judgements can be challenged and reviewed; the need for adequate funding for local authority Conservation Officers to ensure that local heritage is protected; the need for closer and more formal collaboration between Historic Scotland and local authorities in their approach to listing; the importance of reflecting local interest and local needs; the need to balance clarity and fair treatment for planning applicants and building owners with the need to safeguard the heritage; if listed building repairs were free from VAT it would encourage maintenance, which in turn would give added weight to the listing process and engender support from those directly affected.

5.2 The consultation on the Listing SHEP generated a broad and complex debate about the principles and application of listing. There was a good spread of responses from heritage bodies, local authorities, voluntary bodies, religious groups and the private sector. Although there was broad support for much of the existing listing policy, the responses suggested a desire for change in some policy areas and indicated diverging opinion within and between interest groups on some topics. 5.3 Historic Scotland will give careful consideration to all of the views expressed as part of the consultation process and will consider the policy document further in light of these comments. 13

ANNEX A

LISTING CONSULTATION REPSONDEES A + D Scotland Aberdeenshire Council Architectural Heritage Society of Scotland British Waterways Comhairle nan Eilean Siar East Ayrshire Council East Renfrewshire Council Edinburgh Diocesan Centre Glasgow City Council Heritage Railway Association Historic Houses Association for Scotland National Trust for Scotland Network Rail North Ayrshire Council North Lanarkshire Council Perth & Kinross Council RCAHMS Scottish Churches Committee Scottish Civic Trust Scottish Natural Heritage Society of Antiquaries of Scotland South Ayrshire Council The Cinema Theatre Association The City of Edinburgh Council The Theatres Trust The Twentieth Century Society White, Alistair W

NDPB Local Authority Heritage Body Heritage Body Local Authority Local Authority Local Authority Religious Group Local Authority Heritage Body Heritage Body Heritage Body Private Company Local Authority Local Authority Local Authority Heritage Body Religious Group Heritage Body NDPB Heritage Body Local Authority Heritage Body Local Authority Heritage Body Heritage Body Individual