The English Heritage (now Historic England) criteria used to assess the acceptability of enabling development require that only the minimum necessary (development) is consented to secure the future of the asset. An economic assessment is required to understand the ‘Conservation Deficit’ (the amount by which the cost of repairs exceeds the market value of the asset when repaired) and the return on investment (ROI) for the scheme. Fraught with contingent costs and assumptions this will never be an exact science, but the EH guide provides a helpful commentary on the scope of the potential costs, the extent to which they can legitimately be included in the assessment and the ways in which profit and value are considered.
Local Planning authorities are encouraged to seek professional guidance on the economic viability assessment, a recommendation even more true in 2016 now that planning departments and local authorities are stretched with too few staff.
For enabling development to be supported by the local planning authority, there has to be some certainty that the benefits to the asset will be accrue. Central to the debate between promoter and the local authority are the appropriateness of planning conditions and usually a section 106 agreement as well.
Phasing is an essential element, with the section 106 agreement usually setting out not only the works to be done to the heritage asset but their phasing and timing in relation to the new ‘enabled’ development. The local planning authority will seek to ensure that the enabling development – whether an extension or new houses does not proceed too far ahead of the repair work, with enforcement of the repair work obligations being difficult, particularly if the developer has run out of money. Restrictions on occupation or construction of the new development are usually appropriate and normally imposed. Where authorities have had their ‘fingers burnt’ they may even require developers to provide a financial bond.
Market testing was introduced by EH when they re-issued the guide in 2008. In the event that the heritage asset was owned by a different owner would the enabling development be needed at all? Testing the market is consistent with the principle that enabling development is the solution of last resort. It is also consistent with the principle that a different owner could solve the conservation deficit issue by using the asset in different way, reducing costs or cross subsidising its renovation in a different way – none of which would need the enabling development. Market testing can verify the scale and nature of the conservation deficit and the extent that it is a disincentive for an investor.
What to do about the long term? Because of the inherent uncertainty over what may happen in years or decades to come local planning authorities often ‘kick this into the long grass’. The principle is that enabling development must be the one-off long-term solution – without case law having defined the long term its not surprising that its swept under the rug! Difficult decisions need to be made about the extent of repair work to be funded by enabling development. Always conscious that the greater the repairs, the greater the amount of (‘harmful’) enabling development that will be required to generate the required capital.
The local authority will want assurances that having allowed the enabling development the developer does not return in a few years’ time with the begging bowl (in EH’s terms a ‘second bite of the cherry’). So most local planning authorities will be looking for arrangements to be put in place, most likely in the section 106 agreement, to assure the ongoing maintenance of the asset. For developers the implications can be considerable including having to ensure that the ownership of the enabled development remains linked to the heritage asset – in EH terms ensuring that ‘fragmentation’ is avoided.
Conserving heritage assets has rightly been accorded a high priority in the planning system from the start and that priority is maintained by the NPPF. Although enabling development is dealt with perfunctorily in the NPPF the EH guidance from 2008 still remains the best guide for developers and local authorities. And its one document that we refer to constantly as we seek to help clients find solutions for the ever increasing number of assets that are in need of conservation and restoration.
Allen Creedy MRTPI