Posted on 29th May 2014
  1. This article is offered to those owning listed buildings as a guide on how to deal with enforcement action taken by local planning authorities alleging that inappropriate works have been carried out to the listed building.
  2. It will demonstrate what is meant by a listed building; and what is meant by enforcement appeals

Listed Buildings

Listing is a function of central government, following recommendations by English Heritage and guided by national policies.  An assessment is made as to whether a building or other heritage asset should be listed using the Principles of Selection for Listing Buildings.  The statutory criteria rest on Architectural Interest and Historic Interest.  The general principles of the selection takes account of age and rarity whereby any building erected before 1700 that contains a significant proportion of their original fabric is listed; most buildings dated from 1700 to 1840 are listed; but after then progressively greater selection must be exercised; particularly for those built after 1946.  The implementation and detail of listed buildings is contained in the Planning (Listed Buildings and Conservation Areas) Act 1990 as amended in 1991 (“the Act”).

The need for listed building consent

Section 7 of the Act requires listed building consent to be obtained for any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest.  While it follows that any such works that do not affect its special character do not require consent, works of alteration to listed buildings have to be carefully considered.

Listed Building Enforcement Notices

Where works have been carried out without listed building consent, local planning authorities have powers under section 38 to 46 of the Act to issue a Listed Building Enforcement Notice (“LBEN”).  There is no time limit for the period within which a Notice must be issued for breaches of listed building control (that is for unauthorised and/or inappropriate works that affect the character of the listed building) except that a Notice may not be issued in respect of works in breach of listed building control that were executed before 1 January 1969.

It is worth noting the powers of a local planning authority in respect of certain works.  Painting of a listed building can amount to works requiring consent; equally, works undertaken by others without the owner’s consent, for example theft of a salient feature, are not generally held to be a breach of listed building control.  Nor is demolition or damage to a listed building as a result of an accident, such as being hit by a passing vehicle is not generally regarded as a breach of control.

While there is no definition in the Act of repairs or alterations, a distinction is made between such works.  Frequent examples of work attracting enforcement action include the insertion of plastic windows; loss of the original plan form; or the introduction of inappropriately located service outlets. There are other examples.  An object or structure erected on or after 1 July 1948 which is not fixed to a listed building or, if freestanding and within its curtilage, is not part of the listed building.  Nevertheless section 66 provides that when considering whether to grant planning permission, special regard should be paid to the desirability of preserving a listed building or its setting or any features of special architectural or historic interest which it possesses.

The content of LBENs

Enforcement Notices have to provide a clear statement of the alleged breach and what is needed to put it right.  It should also set out four critical dates: (i) the date on which the notice was issued; (ii) the date on which it was served; (iii) the date on which it becomes effective; and (iv) the date or period for compliance with the requirements.  The notice should also specify whether the steps required are for (1) restoring the building to its former state; or, (2) if restoration is not thought practicable or would be undesirable, such works as to alleviate the effect of the breach; or (3) alternatively for bringing the building to the state it would have been in if the terms and conditions of any listed building consent that has been granted had been complied with.  These are all matters on which specialist legal advice is recommended.

Penalties

Section 43 states that penalties for failing to comply with the requirements of a LBEN may be imprisonment for up to a period of six months or a fine of up to £20,000, or both.  A further fine may be imposed for each day following a first conviction on which any requirements of the LBEN remain unfulfilled.

Appeals

Appeals against LBENs are authorised by section 39 of the Act.  The Act provides eleven grounds which may be used to appeal against such a notice, and while appeals may incorporate more than one of those grounds, some are mutually exclusive; for example, grounds (g), (i), (j) and (k) cannot simultaneously be pleaded in relation to the same LBEN.  Furthermore, some of the grounds set out in the statute may appear attractive to appellants, but are rarely successful.  For example ground (d) suggests that the works that are the subject of the notice were urgently necessary.  However an appeal on that ground has to satisfy all three of the criteria stated in that ground: – that the works were urgently necessary in the interests of safety or health or the preservation of the building AND it would have been impractical to carry out inoffensive repairs or provide temporary support or shelter AND the works were limited to the minimum measures necessary. The comprehensive nature of these aspects is hardly ever achieved. Equally a ground (a) appeal may be made on the premise that the building is not of special or architectural interest but that implies an attack on the listing and a recommendation that the building should be removed from the statutory list is rarely successful.  Other grounds of appeal set out in the Act have to be carefully assessed and warranted before an appeal is made if it is to be upheld, and advice is vital.

Only rarely will it be found that an LBEN can be successfully challenged on the grounds of the notice being invalid or a nullity (that is where the notice is defective in some aspect).  Such a challenge has to follow strict legal principles.  Undertaking unauthorised works to a listed building is an offence of ‘strict liability’; that is ignorance of the fact that the building was listed has been found not to be an acceptable defence.

It follows that anyone served with a listed building enforcement notice should obtain specialist advice as soon as possible.  Given that most LBENs have a strict timetable for an appeal or action it is imperative that such advice should be sought without delay.

Written by Roger Dyer, Barrister at No5 Chambers.

NoVate Direct Legal Solutions can help you find the right legal expert to assist with any planning issues you or your business may have. To speak to us, call on 0845 201 0160 or complete a contact form.