Is it okay for Listed Buildings to be exempt from meeting Part L?

Submitted in part fulfilment of the MArch Architecture Year 6 curriculum at University of Nottingham, 2020.

Essay entitled: A review of legislative policy and ethical codes regarding the environmental performance of listed buildings.

Upon speculation of the rising number of uninhabited listed buildings in the UK, my final year thesis enabled me to conduct a critique of the listed building process to explore potential constraints to the redevelopment of empty heritage buildings. It transpired that, while listing legislation proved less restrictive, key constraints included greater costs with limited funding, poor environmental performance and questionable viability of future uses. While an ‘economy of means’ approach to listed building adaptation can be applied through clever design strategy, it has become evident that the challenges regarding environmental performance in heritage assets lies with current legislation and policy. With the ever-increasing threat of climate change on the horizon, engagement with sustainability in the construction industry has never been more vital.

Is it ethical for an architect to restore a listed building if it is to the detriment of its environmental performance? Or is it more important for us to respect our environment and diminishing resources, at the risk of losing examples of past architectonic building styles and evidence of traditional English craftsmanship. These are the pressing issues raised by this review, which investigates the ethical stance towards sustainability and architectural heritage withheld by the profession today.

Legislation & Policy

Buildings and construction account for more than a third of global energy use and nearly 40% of energy-related CO₂ emissions . As architects, it is our responsibility to mitigate the impacts that past and present construction works and building operations are evidently having on our environment. Approved Document Part L outlines the Building Regulations concerning the environmental performance of buildings; to conserve fuel and power in the built environment, by law, buildings must comply with Regulations 23, 28 and 40, alongside Schedule 1 of Part L, of the Building Regulations . Approved Document Part L is, in essence, a guide to applicants, offering common compliant solutions, however regulations can be met in any way a designer may see fit. Likewise, the Regulations themselves are written with a degree of ‘slackness’, as not to stifle the creativity or ingenuity of the problem-solver that is the architect; each project affords a unique set of circumstances that cannot be resolved by a universal answer. For example, Building Regulations 23 and 28 include what could be described as a ‘get-out clause’: “in so far as that it is technically, functionally and economically feasible”. Although Building Regulations are compulsory, there are exemptions from Part L. Paragraph 3.5 of Part L2B presents five building types that do not need to comply, including listed buildings, non-listed buildings located within conservation areas, and places of worship, only “where compliance would unacceptably alter their character or appearance”. This clause is in reference to the architectural or historical significance a building must withhold to become listed. The ethos of this clause is that every effort should be made to achieve Part L standards, unless it is unsuitable to do so. Paragraph 3.10 of Part L suggests that buildings that are exempt should refer to Historic England’s guidance regarding environmental performance.

The listing of buildings and conservation areas is determined by the Secretary of State for the DDCMS, based on historical and architectural significance, in accordance with the Planning (Listed Buildings and Conservation Areas) Act 1990, which Part L also references. The safeguarding of listed buildings is the primary role of Historic England, and the alteration of any listed asset must gain listed building consent and planning permission based on guidance provided by the organisation, which is decided by planning officers within each local authority. Historic England’s guidance document, referred to in Part L, suggests that for each exempt listed building, local authorities will assess “any impacts on the significance of the heritage asset in accordance with the criteria set out in the National Planning Policy Framework (NPPF)”. The NPPF sets out the Government’s planning policies and instructs authorities on how they should be applied; the NPPF contains paragraphs relating to ‘conserving and enhancing the historic environment’, as well as ‘meeting the challenge of climate change’. Regarding the Building Regulations, this daisy-chain effect of referencing different policies within legislation bequeaths an ambiguity around the legal requirements applicants must meet. Nonetheless, the Part L exemption for listed buildings does pass the responsibility of assessment to a different statutory power, the planning system, to enable buildings to be assessed on a case-by-case basis, by judgement of the experienced officers. This allows a conversation to be held; there is no black and white answer.

It appears that ‘loopholes’ such as the listed building exemption, and ‘loose’ wording within the Building Regulations, may be contributing factors towards the poor environmental performance of listed buildings. The concatenation of referencing within legislation makes it difficult for applicants to differentiate between regulations that must be met by law, and those that are optional, therefore making it easy to take the ‘get-out clause’ that is the exemption. Legislation surrounding the protection of listed buildings is perhaps more transparent, which suggests why it may be prioritised. As listed buildings are not definitively required to reach the standards set out by Part L, many are not energy efficient, and in many cases, provide uncomfortable environments in which to live and work. This becomes a constraint for the redevelopment of those buildings that become uninhabited over time due to resultant damages the costs associated with repairing these faults. The planning system should, in principle, assess impacts on both character and the environment more fairly; a potential solution to this issue may be to introduce more specific policy regarding environmental performance into the NPPF as well as the Building Regulations.

Codes of Conduct

Once responsible solely for the planning, design and manifestation of buildings in isolation, the role of the architect has expanded over time. There is a “necessity [to educate] architects not just for their role in the building industry but in society in general”; architects have a duty to set an example within a larger socioeconomic context, due to the fact that buildings fundamentally impact every aspect of our lives. The social responsibility that architects hold, lies partly with our belief that architecture can create better places, positively affect society, and even play a role in making whole communities more liveable. In our current climate, this responsibility must unquestionably extend to our fragile environment, in which our societies cannot survive without.

Since the inception of the Architect’s Act in 1997, the ethical responsibilities of the architect have been outlined by the ARB’s Architect’s Code. The Code sets out standards of professional conduct that all architects must abide by, by law, in order to retain the title; for this reason, the Code is fairly generic. Similarly, the RIBA has its own Code of Professional Conduct that it’s chartered professionals must follow; based on the principles of the ARB Code, it is much more prescriptive in the sense that it proposes procedures to be followed in order to comply. According to RIBA’s Head of Professional Standards, “RIBA members are the gold standard of the architecture profession […] the codes that members and practices abide by exist to ensure and protect the highest level of professionalism”. For this reason, the RIBA Code is much more specific and is regularly revised to address relevant issues, such as climate change. The 2019 revision of the RIBA Code proudly sets “a higher benchmark, well above the requirements of the ARB”, with regards to ethical best-practice .

Regarding the ethics surrounding the environmental performance of listed buildings, there are a number of entries within both Codes that aim to direct architects to globally favourable outcomes. The most relevant standard, in the ARB Code, “(5) Considering the wider impact of your work”, instructs the architect to “advise [the] client how best to enhance the quality of the environment and its natural resources”. Due to this vague definition, enhancing the “quality of the environment” could be argued to be achieved by maintaining the unique character of a place through the preservation and maintenance of traditional heritage buildings. Conversely, it could be argued that quality can be “enhanced” through the protection and improvement of our wider environment by reducing energy demand and introducing alternative sustainable materials and construction methods. On the other hand, the ARB Code also includes Standard 11, “Co-operation with regulatory requirements […]”, which presumably includes (but doesn’t strictly reference) legislation such as the Building Regulations and the NPPF. As outlined previously, it is perfectly legal, according to Part L, for a listed building not to comply with Building Regulations regarding energy conservation, as long as the proposal is granted planning permission and listed building consent. But does it make it ethical for the architect to ignore the urgency that is the regression of the climate for the sake of history, just because the minimum standards set by the government allow them to do so?

The RIBA Code also supports both ARB standards. Duty 1.5 concurs that “Chartered Practices shall abide by applicable laws and regulations at all times” . Also, Duty 1.1 of Principle 2 states that “Chartered Practices shall act competently, conscientiously and responsibly and are expected to apply reasonable standards of skill, knowledge and care in the performance of all their work”. As mentioned previously, the RIBA Code is much more specific, so it could be said that this Duty particularly concerns the continued reputation of architects in the making of legitimate, ethical decisions, rather than eventual impact of works. Duty 14.1 of this section, however, is more comparable to the ARB’s ‘wider impact’ standard: “Chartered Practices shall have proper concern and due regard for the effect that their professional activities and completed projects may have on users, the local community and society”. The difference with the RIBA Code is that the current version includes specific entries regarding both the importance of respecting heritage assets, and the impact work has on our natural environment. The representation of both heritage and environment, alongside the laxity of wording in both Codes, could allow the argument that both non-compliance with Part L in order to protect heritage buildings, and the championing of sustainable techniques to strengthen our environment, would positively impact society, hence both approaches could be seen to be ethical.

Reflection

“[A]t least 70% of housing stock likely to exist in 2050 in England has already been built, and around 75% of these were constructed before 1975”. Building Regulations are constantly being revised to meet increasingly stringent government targets in order to offset the impact that excessive use of fossil fuels, water and materials has had on the planet; experienced professionals are trusted to research, test and review each policy, and are approved by the Ministry of Housing, Communities and Local Government, therefore, shouldn’t we be able to trust this advice? According to the architect’s ethical codes of conduct, obeying legislation is obligatory. However, as stated by Historic England, “The Building Regulations set standards for how buildings must be constructed to achieve a minimum level of acceptable performance”. This suggests that following the Regulations alone is not enough to be ethical, and that as knowledgeable professionals with a duty towards the wider society, we should strive to exceed these benchmarks. Ironically, future improvements to Part L may prohibit local authorities from setting higher energy efficiency goals than the 2020 revision will specify, even if they wanted to surpass current targets. Nevertheless, interpretation of the current Building Regulations, Planning Policy and Codes, will be driven by the priorities defined for each individual project. In cases where other laws apply, such as listed buildings, an emphasis toward protecting historic and architectural significance may be favoured over the sustainability of the project, as legislation in this field is more definite; of course, in an ideal world, both challenges would be balanced, but it is understood that economic pressures usually lead to prioritisation.

The current system is vague for this very reason. For example, if we were to slacken heritage legislation or make environmental policy more strict, we risk losing or damaging important architectural artefacts, but if we do nothing there is a risk that many buildings will remain undeveloped due to the constraint of poor environmental performance and the expense this creates. It is probably right that legislation is loose enough to allow special considerations and exemptions, as to not be limiting, as this gives power back to the architect and the decision of the planning system, rather than the individuals writing the policy. The case-by case judgement that the planning system affords, allows the architect to make informed decisions based on the unique circumstances of the project and understanding of the wider implications.

The 2019 revision of the RIBA Code is beginning to advise architects on these issues more explicitly, which may help to initiate a change in attitude towards the importance of sustainability, and encourage higher goals to be set (than legislation currently prescribes), though this exclusively applies to Chartered Members. Not all architects are RIBA Chartered; implementation of more specific standards within the ARB Code of Conduct, to which every architect must abide by, would ensure more thought is given to important issues, thus making it easier to make more ethical choices within the profession.

#architecture #heritage #buildingregulations #infrastructure #listedbuildings #climatechange #climateemergancy #environment #performance