Building Preservation Notices and a Pilot for Indemnification of Local Authorities Against Compensation

The Art Deco Firestone Factory on the Great West Road in London was demolished on August Bank Holiday Sunday in 1980. ‘I can recall few buildings of the last decade whose destruction has produced more spontaneous outrage from laymen’, as the commentator Simon Jenkins put it.

This great palace of manufacturing, designed by Wallis, Gilbert and Partners, was one of the signature buildings of the 1930s. It was lost specifically to save the building from being listed and it remains the single greatest loss to pre-emptive demolition since the 1970s.

However it is not alone - although the numbers of such demolitions have declined sharply since then, they still happen. The Blue Boys Inn at Kippings Cross near Tunbridge Wells was partially demolished in 2014 in an apparent attempt to forestall listing, though the loss of 16th century fabric did not prevent that. The Carlton Tavern was demolished in 2015, before it was listed, though Westminster City Council later successfully took legal action for its rebuilding in replica. Most recently, a house in Bristol lost a fine Jacobean ceiling apparently to prevent its listing.

Although the numbers are small, this is a real problem. That is why Historic England started, late last year, to pilot a scheme to encourage local planning authorities (LPAs) to serve Building Preservation Notices (BPNs). With this we will:

• Investigate the background to the issue
• Offer indemnification in certain cases to LPAs where there may be a risk of compensation for costs arising from the serving of the BPN, and
• Investigate the need for similar schemes to protect other kinds of heritage asset from pre-emptive damage

Local planning authorities have been able to serve BPNs for many years but are reluctant to do so. A reason for this is commonly thought to be the risk of compensation with only five or six BPNs being served by LPAs in the past four years. While the number of cases of demolition to pre-empt listing is small - possibly as low as 15 in the last 11 years - pre-emptive damage or demolition is obviously fatal to the building’s conservation.

The way to protect such buildings in England while listing is considered is through the Planning (Listed Buildings and Conservation Areas) Act 1990, by the issuing of Building Preservation Notices. A local planning authority can serve a BPN on the owner and occupier of an unlisted building judged to have both special architectural or historic interest, and to be ‘in danger of demolition or alteration in such a way as to affect its character as a building of such interest’.

There is a sting, however - paragraphs 29-32 of the act concern compensation for loss or damage resulting from the service of the BPN - and this possibility may be depressing the number of BPNs being served. While the number of such claims is thought to be low, the average sum claimed is unknown. That’s why we need to do further research and the pilot scheme.

That small number of current BPNs should be seen against the background of the numbers of listing requests which are consulted on and the number of successful listing decisions made. For 2016/17, those numbers were about 500 and 300 respectively, omitting the larger number of cases where there is no hope of listing, and war memorial listings, part of the First World War centenary.

In Wales, reform of the heritage protection system has taken the 2008 Heritage Protection Bill approach. The Historic Environment (Wales) Act 2016 introduced a requirement for buildings under consideration/consultation for listing to enjoy interim protection as if already listed - it lasts from the beginning of the consultation period until ministers reach a decision on the designation. At the time of writing, there appear to be two buildings undergoing consultation and subject to interim protection. Compensation is payable on the same basis as for BPNs.

Historic England has considered various options to cut back on the pre-emptive demolition of buildings prior to their listing, In the absence of a real prospect of legislative change, we have introduced the pilot scheme. This is made up of a number of prongs:

1. Encouragement of the use of BPNs by publication of improved advice on the Historic England website and by training - a programme of webinars has started, the latest of which occurred on 23 January, 2019
2. Indemnification, briefly mentioned below
3. More research on the use of BPNs and compensation, and analysis of the need for similar schemes to protect against pre-emptive damage in other types of heritage asset, including scheduled monuments

LPAs wanting to consider indemnification by Historic England against the possible risk of a claim should contact Historic England at the earliest possible moment but before the BPN is served. They should then confirm that:

1. The building is eligible for a BPN, in other words that it is both at risk of demolition or alteration such as to affect its historic and architectural interest and it is considered to be of sufficient architectural or historic interest to be listed, and
2. It is believed to be at a risk of a claim for compensation. In such a case Historic England will need information as to the risk (see below). We will then carry out a rapid risk analysis of the case

Where Historic England believes there is a risk of a successful claim for compensation and that indemnification is appropriate, Historic England may provide an indemnity. Historic England reserves the right not to support any case where in its opinion, for example, the perceived risk of compensation is too great.

The LPA would then serve the BPN and the case follows the normal route.

Historic England, in making a decision on indemnification, needs to know that there is strong evidence of threat to the building. This can be based on ‘best guesses’ from the LPA if more accurate information is not available. For instance, are there clear plans for the site or evidence that development is likely to start imminently? Or is it likely that the site has been banked for development later?

The importance of speed in such cases cannot be overstated. Historic England listing staff will be happy to give advice at any stage of the process. Please contact: by email at [email protected] or telephone on 0207 973 3584.

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