Despite its good intentions, the new law on listed buildings is causing hardship and frustration for some property owners, says W K Nowlan

The Society of Chartered Surveyors (SCS), whose members are closely involved with the operation of the heritage section of the 2000 Planning Act, argues that there are significant shortcomings in the operation, administration and funding of Part IV of the 2000 Act.

It makes its case in a recent submission to the Minister for the Environment, Heritage and Local Government which expresses strong support for the concept of preserving Ireland's built heritage.

The SCS is all for conserving our heritage buildings, but the conservation of these buildings needs to be managed intelligently and pragmatically. Things that people value should not be thrown away thoughtlessly, through ignorance or for short-term gain but buildings should be capable of being used today in a productive and useful way.

The society believes that the new Act is beginning to cause hardship and frustration for property owners due to the additional expenses imposed on the owners and occupiers of properties which are listed as heritage properties in council development plans.

The submission argues that changes should be made in the legislation as otherwise it will be counter-productive in time.

The first problem identified by the SCS is that there is only one classification of listing in the Irish legislation. This is unlike the UK where there are five categories of listing in local development plans.

The consequence of this "one size fits all" approach is that, whether a given building be a castle dating from the 17th century or a rural cottage with a pretty porch and no other attributes, both are dealt with by precisely the same procedures under the legislation with no regard for the impact of the conservation on the owner or occupier.

Exactly the same restrictions and constraints are imposed on the property owner or occupier of both types of building. There should be a hierarchy of at least three different grades of listing in the legislation.

As the legislation presently stands, the consequences of the owner or occupier being listed are significant and fall under four main headings as follows:

Firstly, following listing, the normal exemptions from the requirement to apply for planning permission, which apply to carrying out modifications or improvements to a building, are suspended. When a building is listed in Ireland, no work can be carried out to that building without securing planning permission.

Thus it is not possible to build an extension onto a house, to modify the reception desk or partitions in a business premises, or, in theory, even to change the colour of the paintwork.

If a building is not listed, the owner/occupier can change the internal arrangements of the house or business premises and even build a 37 sq m (400 sq ft) extension to a home, or put on a garage or greenhouse, without securing planning permission. Once a building is listed all these rights are withdrawn. Thus, if you are listed and you want to change the bathroom or install a new kitchen, then you have to apply for planning permission to do so.

The second problem is that in applying for planning permission for your extension or modification to the kitchen in your listed property, you may be asked to submit a detailed survey of the entire building prepared by a heritage architect. This survey will probably cost at least €5,000. This cost will not include the extra cost of designing the extension or modification.

The third problem is that if the heritage officer at the local authority does not like the proposals, or if it conflicts with the heritage objectives of the development plan, then you are likely to be refused planning permission. Practising chartered surveyors have many examples on a day-to-day basis of refusals for such refurbishments. The only appeal route for such a refusal is to An Bord Pleanála. All this takes time and money.

The fourth problem is that once approval has been obtained for the proposed works to home or business premises, there are likely to be conditions in the planning permission. These will result in the cost of the works being significantly more than if the work was done in the normal way.

In a case familiar to the author, one condition of a planning permission for upgrading a listed building required the homeowner to restore the original kitchen floor with terracotta tiles appropriate to the period when the Victorian house was built.

In the submission by the SCS to the minister, it is estimated that the cost of carrying out modifications or repairs to a listed building would be double the cost of similar works to an unlisted building and double the time scale.

This means that if the cost of repair works to a non-listed building were €50,000 then the cost of works to a listed building would be €100,000.

The SCS does not suggest that the concept of listed buildings should be removed or even downgraded, but argues that a more practical approach be adopted - both in the detail of the legislation and in its application - by the planning authorities.

It has also argued that the extra cost of building work required by the heritage condition in the planning permission should be borne by the community in one form or another, either by direct grants or through tax relief.

When the Irish legislation is compared to that of the UK, some very important differences are to be found. Firstly, in the UK there are five different categories of listing which set different levels of exemption from the requirement to obtain planning permission.

Secondly, significant grants are available from the government, English Heritage, the National Lottery Building Preservation Trust grants and also from local government, to aid individual property owners to carry out restoration work. In addition, VAT relief is available in the UK.

In Ireland there is a total fund of €2.4 million available for the entire country to assist the owners/occupiers of a listed building meet the extra cost of repairs to buildings.

This funding needs to be greatly expanded. In the UK, the lottery fund and English Heritage contributed over €0.5 billion last year in grants to protected structures. In addition, there were direct grants from local authorities and the government.

Thirdly, in the UK, the entire thrust of the conservation movement is to encourage property owners in every way possible to feel proud or privileged to live in a heritage property. This is done by being proactive in giving helpful advice to owners, by financial assistance and by allowing buildings to be adapted in a way that meets modern accommodation and use needs.

They only take the "museum" approach in very rare and special cases which represent about 3 per cent of heritage properties. Experience to date would indicate that we in Ireland take the "museum" approach in most cases.

One of the administrative problems in the operation of the legislation is that it imposes huge extra workloads on local planning offices and heritage offices who do not have the time, expertise or resources to operate the act in a user-friendly way. The new law is applied in a summary way with little help or guidance given to property owners. "The law is the law" is generally the approach.

In the UK, experienced and skilled conservation experts staff the planning offices. These experts go out of their way to assist property owners at a practical and financial level on how to look after their properties and how to adapt them for use in the 21st century, without losing the elements of the building worthy of conservation.

In Ireland we need to change the law, its administration and its funding to make property owners and occupiers proud to live in or use a heritage property.

We need more carrot and less stick.

Next week I will write about some of the technical issues and recommendations in the SCS heritage submission to the minister.

W K Nowlan (FRICS, FSCS, MIPI) was chairman of the working party which prepared the submission to the Minister for the Environment, Heritage and Local Government. Copies of the full submission are available from the SCS website www.scs.ie