Education, Lifelong Learning and Culture Committee

Meeting date: Wednesday, September 22, 2010

Official Report 432KB pdf

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Historic Environment (Amendment) (Scotland) Bill: Stage 1

Item 2 is the committee’s continued consideration of the Historic Environment (Amendment) (Scotland) Bill. I am pleased to welcome Dave Sutton, who is representing Heads of Planning Scotland; Charles Strang, who is the Scottish planning policy officer with the Royal Town Planning Institute in Scotland; and Stuart Eydmann, who is a member of the RTPI. I thank them for attending the committee and for their written submissions in advance of the meeting.

The committee will put a number of questions to the witnesses. I will start.

How easy is it to access reliable and accurate information about the condition of historic buildings, scheduled monuments and listed buildings? Are the witnesses confident that it is easy to access that information and that, when they access it, it is up to date and accurate?

The pastmap website is excellent for accessing information on listed buildings in that we can find the list description of the building and search for it by parish and area. It is good for finding out whether a building is listed. I understand that Historic Scotland is moving to do the same with scheduled monuments but is not quite there yet. The work on the historic environment record is at a much earlier stage because, although it is mentioned in the Scottish Planning Policy, I am not sure that we are all aligned with the European regulations. Heads of Planning Scotland is liaising with the Royal Commission on the Ancient and Historic Monuments of Scotland and Historical Scotland. In time, that will all come together.

The basic information on the listing of a building is less of an issue, but the picture on the condition of the building is much more mixed. My authority was surveyed early for the buildings at risk register. When that survey was carried out, all categories of listed building were included but, subsequently, Historic Scotland has surveyed only category A buildings for the register. I am not convinced that that provides a robust enough picture. There is more work to be done to get an up-to-date record.

In England, there is the heritage at risk survey, an electronic survey that English Heritage carried out. The agency got an 81 per cent response from local authorities, but that survey enabled it to have a big picture of not only the category A buildings but all categories of building.

There is scope for the RTPI, the Institute of Historic Building Conservation and local authorities to work with Historic Scotland to get a better annual update. The most recent report from Scotland’s historic environment audit was in 2007 and we have just had the draft data for 2010. What about 2008 and 2009? The SHEA report should be an annual publication.

We agree that access to information on individual buildings and individual cases in Scotland is good and getting better. There may be a deficit in the general picture of the built environment in Scotland as a whole—precisely how many buildings are at risk, how many historic buildings there are and where they are. In the higher-level information, we sometimes struggle to get a good snapshot of the state of the country’s historic environment, but the information on individual cases is good.

Does the legislation need to be amended to allow that information to be collected annually or could the matter be more easily addressed through guidance? Could it even be something that the minister could address by directing Historic Scotland to undertake that work? It would be helpful to know your opinion on the most effective way in which that could be done.

There would not necessarily be any benefit from legislation on that. Elected members could just expect Historic Scotland to produce an annual statement. I put a link in my report to the Scottish Environment LINK that sets out a page and a half of suggested performance initiatives. We still do not have clarity from Historic Scotland on how our councils are to be assessed on their performance on the historic environment. We do not know how many times urgent works and repair notices are being served, yet every quarter we get a freedom of information request from a private sector solicitor asking us for that information. It would be much better for Historic Scotland to be proactive, and to collect that information and publish it, so that everyone can see it and we can compare how different authorities are doing. Instead, one private firm pursues it, and we have to spend our time dealing with freedom of information requests.

When we are considering the legislation on enforcement, the question to ask is whether it is being used. To put it another way, are we sharpening a knife and then putting it back in the cupboard, where it is not being used? We welcome the general thrust and direction of the bill but, at the end of the day, is the legislation being effective? There are concerns about the deterioration of the historic environment and whether it is being effectively monitored.

Do you believe that that monitoring role should sit firmly with Historic Scotland?

Yes.

In its submission, the Royal Town Planning Institute in Scotland called for an extension of listing definitions to include

“historic road or footpath surfaces which are currently largely unprotected.”

However, the Scottish Rural Property and Business Association believes that any expansion of the definition of “monument” would make it too wide and too vague. Will the RTPI expand on its suggestion that monument listings should be extended to cover historic road or footpath surfaces?

Just to clarify, the reference is to the listing of buildings not the scheduling of monuments. We understand that there is a lacuna in the legislation that means that the surface treatment in the Square in Kelso, for example, cannot be listed. There appears to be case history in which proposals for listing have been knocked back by what were described as “Scottish Office lawyers”, who took the view that it was not covered by the legislation. We think that there is perhaps an opportunity to correct that in the small number of circumstances in which it would be appropriate. The aim is primarily to safeguard features of local interest. I cannot see that it would be of any major financial consequence, but it might prevent local authorities or owners of private roads from removing something that has been there for many years and is of historic interest and is—dare I say it?—important to the quality of place. We are simply suggesting that that be considered.

The SRPBA disagrees. Section 14 of the bill refers to

“any site ... comprising any thing, or group of things, that evidences previous human activity”.

Surely that is pretty wide ranging. You are talking about a small number of circumstances, but the SRPBA disagrees because it seems almost like a catch-all. The Law Society of Scotland thinks that it might be more appropriate to allow ministers to act when they hold a reasonable belief that the site is likely to comprise any thing or group of things that evidences previous human activity. That narrows it down to the focus that you were talking about a couple of minutes ago, Mr Strang.

I am afraid that we are getting confused with the scheduling of ancient monuments and the suggestion that the range of possibilities for scheduling be expanded. I am talking about listed buildings and a completely different piece of legislation; the possibility of listing has nothing to do with the rather more esoteric possibilities that the Scottish ministers would have in scheduling ancient monuments. I hope that I am right in that, but I look for support from those to my right and left.

The point has been brought to our attention by previous witnesses. They have concerns about the expansion of the definition of “monument”. That is the issue that we are talking about.

I want to reinforce what Charles Strang said. What is being proposed in the RTPI’s submission is the expansion of the definition or scope of listed buildings. It refers to surfaces of an historic nature, which—off the top of my head—could be the rather unusual but not unique paving that exists at the back of Charlotte Square and in parts of Falkland. It is probably 150 years old and was laid at the same time as the houses around it were built, and therefore it contributes to the setting of important buildings and the areas in which they are. We are talking about relatively small pockets of clearly historic works rather than footpaths, rights of way or footfall, as one of the witnesses previously described it. We are talking about small and discrete areas of, for example, clearly and skilfully laid pieces of paving.

We have had evidence from HOPS about situations in which owners try to evade liability by moving ownership between different paper companies. Will you comment on that and the extent to which you feel it is a major issue?

We discussed the issue, and we would suggest that there is little usage by local authorities of either urgent works notices or repair notices—the number is unlikely to be in double figures. At the very start, we should gather the information to find out whether the legislation is being used. In three years in North Lanarkshire, we have used one urgent works notice. The legislation is not hugely used, as we would normally prefer to use dangerous structures notices under the Building (Scotland) Act 2003. They tend to have a budget because they are focused on health and safety, and often it is a question of making the site secure to prevent the building from deteriorating.

On evasion by owners, when we served the urgent works notice, the first thing that the owner did was move ownership of the property to another company. Indeed, in my experience of serving urgent works notices, it is best to err on the wider side. I have found that, if there are any doubts, ownership will usually be clarified a day or two before any legal action. We served the notice on the individual owner and on both of the companies lest there be any doubt. The suggestion in the legislation that there will be a legal charge against the property is therefore to be welcomed. However, the five-year limit on the recovery of costs would be of concern. We have to take a long-term view for some sites, and I am not sure whether any costs incurred by the council in making the site safe would always be resolved in the five-year time limit that is suggested.

Do you believe that the five-year time limit would encourage procrastination? If so, what is the solution?

We negotiate with owners to try to get them to look after the listed building; they negotiate probably to get enabling development—to knock down part of the building or whatever. The more it falls down, the better for them. We have 40 to 50 ruinous buildings that we are trying to find ways of unlocking, which is difficult in the current climate with the limited grants and so on. If the council takes action to make the building safe for the local community and prevent further deterioration, it is a legal charge on the property. The liability notice expires after five years. If I am an owner three years into the period of the notice, I will wait for another couple of years because then I will get away without having to pay it.

10:15

Estimates have been done of the cost to the council of serving an urgent works or repairs notice, which might be one of the reasons why they are used so little. Should local authorities be able to get financial support from Historic Scotland for serving such notices? It is about managing the risk to local authorities. As I said, when our council looked at the matter in detail, we felt safer acting under the building standards legislation in which there are fewer defences against notices. The repairs notice has no enforcement attached other than the use of a compulsory purchase order. If a CPO is used, there is the possibility of a counter notice being served. Then there are the complications of having a back-to-back agreement with building preservation trust. It is incredibly complex. That is why there is reluctance to use either of those measures.

May I pursue that point further? Are you confident that the technicalities of those details are sufficiently well laid out in the bill?

The processes relating to an urgent works or repair notice are clearly laid out, but the question is whether they are effective in practice. It seems that the bill tries to shut the door after the horse has bolted. I offer you an example. Residents ring me up to say that their neighbour is not maintaining his dovecot, which is a listed building, and they have to deal with the pigeons and deterioration of the listed wall. We cannot take any action until the building either needs urgent works or becomes dangerous.

There has been a lot of discussion about the duty of care. I think that the public expect owners of listed buildings to care for that piece of heritage, but there is no financial incentive for them to do so. Indeed, on the contrary, they might let the need for repairs accumulate to the point at which they need to do much more substantial works. Although some works might be exempt, there is currently no tax or VAT incentive for normal repairs. Although we designate the historic environment and say that we want it to be cared for, we do not have a corresponding system to help people to care for it. The local authorities’ role is as a last resort when a building gets to a serious stage of disrepair. Councils understand that but, because of the complexity of the legislation and the number of defences set out in it and in case law, they are reluctant to use it.

Notwithstanding your valid point about the lack of financial incentives, is there anything else that we can do to encourage people to take up their duty of care more than they do at present?

The Scottish historic environment policy from Historic Scotland contains a duty of care—I describe it as an implied duty of care. It is for politicians to consider whether that duty should be in the policies or in the legislation. If an authority is not carrying out that duty of care or using appropriate expertise, the defence mechanism is for someone to make a complaint of maladministration. We have seen that happen more in England as councils have cut back on conservation services. Councils that do not have either the appropriate expertise or the resources have sometimes cut corners. That has led to a number of successful maladministration cases.

You asked whether there are other things that we can do. Historic Scotland’s inform guides are a good-practice example of educating people in how to care for the historic environment. The number of stone buildings that I see being destroyed because people are trying to care for them but are using cement pointing or things like that is ridiculous. There needs to be an education process. For example, I understand that there is no slate training course north of Arbroath to train people in the slate industry and skills are being lost. Increasingly, when we are looking to have a listed building refurbished, we find that we need to ensure that the people who are doing the work—whether it be leadwork, stonework or work involving some other trade—know what they are on about. In the longer term, we need to plan to address that skills shortage.

How big is the problem of people damaging their buildings or letting their buildings go to wrack and ruin? I do not quite grasp how widespread that is. There is little information on how much the current powers are used against owners.

In England, the heritage at risk survey shows that, over a 10-year period, the proportion of buildings that are rated 1* and 2*—equivalent to categories A and B in Scotland—has come down from about 3.9 per cent to about 3.1 per cent. In Scotland, it is suggested that the figure is about 6 per cent, but that is based on a survey of category A listed buildings only. The short answer is that we do not know. Based on anecdotal evidence—we talked about this earlier—we suggest that there is a much higher level of deterioration of the heritage. That is why the starting point is to ensure that there is a proper annual survey that gives us a bit more confidence about the state of that heritage. For example, the 2010 data that Historic Scotland has just issued refer to a net gain in listed buildings. I have asked Historic Scotland how many listed buildings were demolished last year, but I have not received an answer. If we do not monitor what is being lost as well as what is being added, we will not know how much we are losing.

Many of the good listed buildings are fairly obviously listed. There is much discussion of whether people should be able to acquire immunity from listing. A much better alternative would be to ensure that Historic Scotland has reviewed every area within the past 10 or 12 years, because then we would have an up-to-date list in a preventive sense rather than a firefighting sense. There is concern that Historic Scotland’s listing focuses too much on individual requests and not enough on either thematic reviews or overall area reviews.

We will come back to the issue of immunity from listing. You make a good point about the need to collect information. Can you confirm that you do not want that to be a duty in legislation and that you see it just as good practice?

Yes.

All of you are members of the Built Environment Forum Scotland, which has suggested that the scope of the bill could be extended much further and that a duty could be placed on public bodies, especially local authorities, to take account of the built environment. Do you think that such a duty is needed?

We have not seen a mechanism for how that could work. In theory, it is wonderful. As has been mentioned, there is already an implied duty in national policy. It is not clear to the RTPI how that could be implemented and enforced in a legislative sense, but we welcome anything that would reinforce the responsibility of property owners.

The SHEP includes what I describe as an implied duty of care, but I do not know whether that has been carried through into Improvement Service guidance on asset management plans. I wrote to the service a year and a bit ago, when it was consulting on asset management plans, which relate to councils’ property services departments. Why does the guidance that the service issues not address heritage issues? Our more recent discussions with national health service bodies have indicated that the NHS property sector may be starting to receive some guidance, because those bodies are talking about the need for management plans for all their properties that will address the situation of the historic environment. It is about starting to build the objectives of the SHEP into the good-practice guidance, and making sure that that is linked to easily monitored data on the heritage environment and performance under the legislation.

Would placing a duty in statute be helpful in that regard?

Heads of Planning Scotland supports the bill because it does not go that extra step into the legislation. Some councils probably run a negligible historic environment service and, in my view, they put themselves at risk of maladministration cases. I do not know that the bill adds anything. I would rather have something that is practical and working than legislation.

On the two requests from the Built Environment Forum, such a duty is built into the existing Scottish historic environment policy

Historic Scotland says that it wants a partnership approach. That is your view too.

The Built Environment Forum called for the bill to ensure that local authorities have access and give special regard to appropriate information and expert advice. Your submission has highlighted your concern about the lack of staff with relevant skills.

There might be some councils now that do not have those skills in-house, and that is of concern.

Would you therefore welcome it if the bill imposed a duty on local authorities to ensure that they have access to those skills?

There is a requirement on councils to take expert advice, but the question is about what happens when they do not take that advice. I do not know that legislation would make a huge difference. It would be an unnecessary burden on local authorities. One of our concerns was that, when Arup did a detailed staffing survey of local authorities, that took around 18 months to surface publicly, by which time it was largely out of date. It is not rocket science to monitor the numbers who are employed in local authorities. Part of the staffing survey illustrated some of the complexities of defining the built heritage staff, especially if planners or people without dedicated skills and knowledge are being used. When councils have trained officers, it is very easy to define the staff. The emphasis should be more on gathering information, so that we can have an informed debate, rather than on legislation. I do not know what legislation would add.

Your points are well made, and I do not think that anyone around this table or any of the witnesses who have given evidence on the bill would disagree with what you are saying. The difficulty for the committee is that we are trying to work out what should go into statute and what should not.

Our concern is that you are talking about good intentions and good practice in some cases, but poor practice in others. It is a common argument that if something is put into statute, it is given extra force or weight and local and other authorities pay particular attention to it. The RTPI’s submission raises a concern about the lack of available resources. At a time of financial constraint, local authorities and others will retreat from everything other than their statutory duties. Are you not therefore tempted to put more statutory duties in the legislation?

It would be a naive local authority that considered only its statutory responsibilities and cut to that point. We certainly view the planning service as being rather more complicated than that. It is certainly true that there is an important consultation out at the moment to which we intend to respond. Our response will be informed by hard information, and there does not seem to be a great deal of that around at the moment, which is unfortunate, as has been explained. Hard and current information is an essential part of any sound planning process. We are not in an ideal position, but no doubt those points will be made in response to the consultation.

10:30

The consultation that Charles Strang refers to is “Resourcing a High Quality Planning System”, which comes from your house to us as consultees.

It is worth mentioning that specialist staff working in the historic environment are not solely concerned with day-to-day control matters, which much of the bill is concerned with; the presence of specialist staff has a substantial educational aspect and a community liaison aspect. Having specialist staff means that the local authority can act as a one-stop-shop on historic environment matters for people who may not be able to take the time and effort to contact Historic Scotland at a national level. Specialist staff and services have been embedded in the planning system since the 1970s. They are not a relatively new development; they could be vulnerable, but they have a much wider role than only the day-to-day control aspects that we have talked about.

For the avoidance of doubt, we would see that as being very relevant to the on-going round of development plans—both strategic development plans and, in particular, local development plans, because understanding of the historic environment and the physical environment is tremendously important in terms of place and all the other things that the wider community perhaps thinks of as key aspects of planning.

I have another question about listing, but perhaps I should ask it later.

I clarify, for the record, that the consultation on resources for planning is being undertaken by the Scottish Government, not the Scottish Parliament or the Education, Lifelong Learning and Culture Committee.

I also point out that someone clearly has a mobile device switched on, because it is interfering with the sound system. Can we all ensure that our mobile devices are off and not just on silent? [Interruption.] I do not disbelieve you, deputy convener. The mobile device is much more likely to be in the vicinity of Mr Macintosh, as it was his microphone that was being interfered with.

Good morning. I will move on to certificates of immunity from listing, which Ken Macintosh mentioned earlier. Some organisations have expressed quite strong concerns. I ask Mr Sutton to give us a wee bit insight into how HOPS feels about the issue. It has been suggested that the process could

“be used by hostile third parties to delay or derail a proposal without a developer being aware of the request for a certificate”.

I do not think that the proposed certificate of immunity is a big issue. All those worries were expressed when the certificate of immunity was introduced in England, and they have withered away because there has been very little use of such certificates. It is more important to look at their role if there is a development application and the building is not already listed. I would rather that the emphasis was on Historic Scotland doing an area listing review within a 10 or 12-year period, because that is being proactive in identifying the heritage that is worthy of being protected in a more general sense, rather than firefighting in an individual case.

If there is a development application and the building is not already listed—and we have had some applications in relation to health authority buildings, for example, that were identified in the Historic Scotland thematic review and that one might, therefore, have considered to be worthy of listing—the problem is that Historic Scotland goes into a state of suspended animation, because if there is a current planning application or, indeed, a building regulation application to demolish a building, it cannot say anything. We want local authorities to make decisions early on about what is worthy of protection. Let us know whether something is or is not worthy of protection, then that can be considered through the planning process. That helps developers. It has been suggested that third parties should not be able to apply for a certificate of immunity. In my view, if something is important, it is better to have that assessed as early as possible in the process, so that we know what it is important to try to preserve, protect or enhance.

There are also people—although there are fewer of them in Scotland—who wilfully ignore the planning regulations. If they get a sniff of the fact that listing is being considered, the wall in question will be flattened by the end of the weekend; authorities do not work over the weekend, so the wall will just disappear. There is a need for protection while listing is being considered. The bill does not provide explicitly for stop notices or protection notices over a two to four-week period.

It is in everyone’s interest to have early, quick assessment. Stuart Eydmann may want to caution the committee about how the process might be abused.

I am not sure that I have any concerns. Certain parts of our legal fraternity might see the issue as another thing to build into the home report or the preparatory information for which people are required to pay before they buy or sell property, but that is not really an issue for the Royal Town Planning Institute. I emphasise that it should be open to all, rather than a limited number of people, to apply for certificates. If a building is worthy of protection, that information should be available to everyone, not just to a limited number of people. It should be in the public domain.

My memory is telling me about an historic wall that was knocked down in the very circumstances that you describe. Is that the type of situation in which a stop notice should be issued?

That is why legislation needs to make it explicit that if there is to be an emergency review, the presumption is that no works will be undertaken during consideration of a site’s importance, and that if someone undertakes pre-emptive works, they will be legally liable. My preference is for regular area reviews; Historic Scotland can advise on whether such reviews should take place on a 10 or 12-year basis. Again, that is preventive action. Educating and working with owners on what is important and is to be looked after will avoid the need for urgent works, enabling development and so on.

It is a worry that we may have lost to the demolishers some things that would have been valuable.

That emphasises the need for comprehensive and thorough reviews. One difficulty for us in authorities is that when Historic Scotland lists a building, it does not state a curtilage. In e-planning, we are moving to digital mapping, which involves polygon data rather than point data. Our authority will include best-guess polygons in the planning process, because listed building curtilage is defined by case law not legislation. There are five tests, although Historic Scotland persists in suggesting that there are four, without telling us on what basis it does so. My preference is to stick to the five tests that are set by case law.

In 90 per cent of instances, it is obvious what the curtilage is, but assessing the curtilage for some larger estates and more complex sites is quite complex, particularly if there have been changes of ownership over time. Even if something is defined as a listed building, there are still issues for us to discuss with Historic Scotland. Historic Scotland suggests that modern listed buildings—post-1948 buildings—have no curtilage, which I find incredibly strange. It has in one case changed its view, and we are still in discussion with it, but it seems to me that buildings that are listed as modern architectural gems must have a curtilage or boundary. Clarifying technical issues of that sort would be more helpful than worrying unduly about other points.

If a building is listed but people do not see it as worthy of listing, or if it is unlisted but people consider it worthy of listing, it is right and proper that there should be a review procedure, provided that the status quo is maintained during the short period of the review.

That is heard loud and clear.

Why does the Royal Town Planning Institute believe that applications for a certificate against listing should be subject to a charge?

That is not because we are necessarily pro-charging. In fact, I am reliably informed that the institute has been opposed in principle to the introduction of fees for planning applications. In this case, we believe that a charge should be made because of the extent of the time and effort that might be required by Historic Scotland’s listing folk and the need to backfill that in a meaningful way. Charging a reasonable fee that represents the cost of carrying out the work would also mean that only serious requests rather than vexatious ones arose. However, that point is not to be understood as meaning that we believe in charging a fee for everything, as that is not the case.

Finally, I want to explore a bit further Mr Sutton’s earlier point about having a review of listing every five or 10 years. What are your views on that and how would it work?

That goes back a year and a half or so, to a meeting we attended with Historic Scotland, when my understanding was that it was spending about 60 per cent of its time on individual requests for listing. In my view, that is disproportionate. I understand that Historic Scotland had a case in Edinburgh in which there was a freedom of information request and accusations of collusion with the local authority. In my view, listing needs to be a clear and professional judgment that is based on stated criteria.

I moved up to Scotland a number of years ago, and I find that the listing process here is, shall we say, more political, rather than being an objective assessment. It is important to have clear and objective criteria on the purpose of listing. I would rather put the emphasis on properly managed area reviews. Our area has been reviewed in parts, but some reviews are 15 years old and some are four or five years old. Once the work has been done thoroughly, a requirement for periodic review should mean a lot less work every 10 years or so.

Does the Royal Town Planning Institute have a view on timescales?

I was tempted to pull Dave Sutton up there, because we are in a place where describing something as “political” might not necessarily be taken to be a bad thing. However, what he says makes sense. There is no point in working towards a five-yearly review of local development plans if we are working with 15 or 20-year-old data on the quality of historic buildings. There is no firm statement in relation to historic buildings; it rolls forward. The rough rule of thumb in Scotland is that a building can be considered for listed status either after it is 30 years old or after the architect is dead. Obviously, if a list for an area is 20 or 25 years old, it will miss a significant number of buildings.

Some authorities will be able to deal with that and to identify some of the important buildings, but other authorities will not. If the job is worth doing, it is worth doing properly. We have the skills; we just need to put in the manpower and effort to give us the raw data to make sensible plans.

Mr Macintosh, has your question on listing been covered?

No. It was for Heads of Planning Scotland. Its written submission makes a point about ecclesiastical exemptions—the concern is about churches and other places of worship.

10:45

Ecclesiastical buildings that are in use are exempt from the planning system. They might or might not need listed building consent for external works, but they do not for interior works. For example, a resident wrote to complain about pews being removed—albeit from a modern church, but one in which they were part and parcel of the character. We wrote to the Church of Scotland, but did not even get the courtesy of a reply or acknowledgement. The resident then made a freedom of information request to the council, so we said, “Here’s all the information—we’ve done what we can.”

If we delegate the decision on protecting heritage to the ecclesiastical bodies, we need to ask whether they have in place appropriate systems to ensure that they take appropriate heritage conservation advice when they carry out any works. My experience suggests that adequate protections do not appear to be in place. The ecclesiastical exemption adds to the complexity of the planning system, and we need to ask whether there is a clear and obvious benefit from it.

At present the situation is more complex, because there are questions around whether a church is in use, and whether that means the whole church—perhaps the main church is in use but the church hall is not. In the end, it is only about the exterior; some churches are listed because of their fine interiors, but there is no control of that whatever.

My understanding is that the reason for having an ecclesiastical exemption in the first place is more to do with the role of the church and state in England, and the fact that the monarch is the head of the church; for some reason, that means we enjoy the imposition of the ecclesiastical exemption in Scotland. I do not really understand that, and over the years people have suggested that it is not appropriate.

As with any building, concerns are expressed about how changes occur—how pews or stained glass are removed, for example. The listed building legislation is about managing change, rather than preventing things from happening. Informing change and involving the views of the community seem to be sensible objectives, and I suggest that the ecclesiastical exemption is in truth an anachronism.

Is the exemption in legislation or in guidance?

I think it is legislative.

I think it is legislative.

The Heads of Planning Scotland submission states that bringing places of worship into the listed building system

“would closely fit the modernising planning agenda by simplifying the exceptions.”

Are there exemptions or exceptions other than just for churches that are in use?

I am aware of Crown exemption.

That is a complex one. In England, Crown exemption is now being removed from the listed building legislation, but I will pass on the question because we have not had to deal with any Crown buildings in Scotland. I understand that the intention in England is to move in that direction, but Crown exemption is currently the other main exemption.

You asked earlier about ground surfacing. There was a legal case some years ago that means that we would avoid giving a direct answer on whether a change of surface materials needs listed building consent. It affects the character, but that legal case suggested that it would not in itself require a listed building application.

The rule of thumb with listed building applications is whether the proposed change will affect the historic character in any manner. The custom and practice among people who work in the field means that they are quite easily able to interpret how that rule should be applied in what I would regard as a common sense and practical way.

Crown and ecclesiastical buildings, being exempt, are at the edges of the definition of what requires listed building consent, and so are conservation areas. The Shimizu case, which defined what constitutes a minor change, has had a major adverse impact on conservation areas. In designating a conservation area, the council is expected by you—and the public—to protect it. We do a character assessment and produce a management plan—hopefully within a five to 10-year period—but there is no protection in relation to minor changes.

In some conservation areas, we have a big issue with uPVC windows. We have an article 4 direction and, technically, the change of windows requires permission, but people have not got it. We do not want people to have to redo the windows immediately, but we could do it over 15 years, because uPVC windows are not expected to last longer than that before they have to be replaced. If we take a more sensitive approach, does that take us beyond the five-year or four-year limit for enforcement action? Those are some of the day-to-day issues with which we have to wrestle.

You mentioned the Shimizu case.

It was a legal case in London that hinged on the definitions of alterations and what constitutes a minor alteration. In effect, it defined alterations as being substantial—for example, if someone was changing something like 80 per cent of the building.

It used to be that, in conservation areas, if someone took out a window that was set back 4in and then set it flush with the outside, which would have a major effect on the building’s character and appearance, the change would be picked up on the basis that it affected the character in any manner. The Shimizu case changed the definition of alterations in conservation areas, so that there is a great deal less protection in relation to minor works in conservation areas.

Historic Scotland’s standard answer would be, “Well, you can use an article 4 direction”, but that is administratively complex and therefore quite resource intensive. Clearer national guidance is needed on which changes require consent in conservation areas, because it is very often not the big changes, such as the demolition of a wall or a property, but the minor changes to windows, doors and chimneys and the modern accoutrements of life, such as satellite dishes, that mean that, before you know it, the character of a conservation area is gone.

That concludes our questions to you today; I thank you for your attendance.

I suspend the committee to allow our witnesses to leave and the next set of witnesses to join us.

10:52 Meeting suspended.

11:02 On resuming—