Listed Buildings – Myths and Risks
Isabel Diver Consultant Planning Solicitor in Foot Anstey looks at popular misconceptions about Listed Building Control, and areas of risk for construction professionals.
There are many misunderstandings about Listed Building Control, and all too often as a result property and construction professionals expose themselves to the risk of both criminal and civil liabilities. As well as undertaking the execution of works, professional practices may themselves own or occupy Listed Buildings, and also advise clients on values, Contract specifications and compliance. In all of these areas serious consequences can result if Listed Buildings are involved, and the realities of Listed Building Control are not fully and correctly appreciated.
The first myth to dispel is that only very old buildings may be Listed. Any building more than 10 years old may be Listed if it is of sufficient architectural or historic interest. Normally buildings which are under 30 years old are only Listed if they are of outstanding quality, but there are a significant number of 20th Century Listed Buildings. The former GLC building in London is a well known example, and only this Spring a War Memorial in Exeter was added to the List.
More significant myths include
• Listing only applies to the exterior of a building
• Listing control only applies to matters mentioned in the Listing entry
• The Listing only catches the actual property directly named in the Listing entry
• Only owners risk criminal liability for breaches
• The passage of time gives immunity from Enforcement action
• Health and Safety requirements overcome Listed Building objections
and I will be commenting on all of these in this article, which summarises the current legal position as it applies to England. There are variations in other parts of the UK. It is a general summary, and appropriate legal advice should be taken and relied on in respect of any specific matter.
The Listed Building Control system under the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) is different from the ordinary Planning system. Under the Planning system, Planning Permission is required for development, which is defined to include material change of use or the carrying out of building or engineering works, but there is no automatic immediate sanction for failing to obtain it in advance. The Planning Authority has a discretion, to be exercised following a cost benefit analysis, over whether to take Enforcement action against development undertaken without Planning Permission. Submission of a late or retrospective Application as such is not a material planning consideration, and the Application has to be decided on its planning merits. Building Regulations are different again, with a detailed code, a requirement to comply, and a discretion to relax the Code.
The situation in respect of Listed Buildings is different. Section 7 of the Act prohibits the carrying out of a wide range of physical works in respect of Listed Buildings unless they have been authorised by a Listed Building Consent. Section 9 makes it a criminal offence for anyone to execute, or cause to be executed, such works, and sets out the very limited defences available. There is a separate offence for failing to comply with the conditions attached to a Listed Building Consent, and under Section 59 it is also an offence to carry out intentional “damage” to a Listed Building. Section 59 catches those “convenient nudges” to undermine stability and integrity, which can seem attractive in some situations, and includes setting fire to the building.
Penalties under Section 9 take into account any financial benefit accruing, and can include both substantial fines and imprisonment for up to 2 years. Prosecutions can and do occur even if the actual works are unobjectionable and are subsequently granted retrospective consent. It is not just the owner who may be prosecuted, the individuals who were physically involved, or issued the instructions, are also at risk of prosecution.
The scope of the control is very wide, covering full demolition automatically, and other physical works, including partial demolition, if and so far as they materially affect the character of that particular building as a Listed Building. Like for like repairs and maintenance are outside the regime, but otherwise it is a matter of judgement in each case whether particular works need Listed Building consent. There is extensive guidance in the Government’s Planning Policy Guidance (PPG 15) as to what may be covered, and also how the discretion to grant or refuse should be exercised by the Local Planning Authority.
The same legal framework of control applies, whether we are dealing with a Grade I “national treasure”, a little rural cottage or urban terraced house (Grade II), or a telephone kiosk. There is no longer a Grade III, and the popular misconception that only the exterior is caught by Listed status is a throwback to that old lower classification which used to exist many years ago. The important test is the effect on character, and the same work will therefore impact differently on different properties.
There are always two separate issues; do the works need Listed Building Consent, and if so should it be given. Unlike Planning, Listed Building Consent is not required for a change of use as such. Nevertheless, Listed Building Consent may be required for works to the interior of a building in order to facilitate a change of use, and which would not require Planning Consent, because, thanks to Section 55 (2) (a) of the Town and Country Planning Act 1990, they are outside the definition of development.
Listed Building Control applies to the Listed Building, all of it, inside and out, and to any object or structure fixed to the building. It also catches any other object or structure within the curtilage of the Listed Building, and which although not fixed to the Listed Building, forms part of the land, and has done so since before July 1st 1948. At one time new structures erected within the curtilage after 1st July 1948 also automatically became subject to Listed Building Control, but mercifully that ceased to be the law in 1986. Modern Listing practice is to identify clearly and individually those actual buildings which are to be Listed, and thus minimise any doubts over whether other buildings on or near the principal building are caught as curtilage buildings. Unfortunately, problems still arise under the many older, less specific, entries.
Thus, the whole of a Listed late Victorian house, including weather-vane, chimney pots, 1950s lean to extension, and Edwardian attic room partitions will be controlled, together with the internal doors and door furniture, and any garden or boundary walls which are fixed to the house. The free standing Lodge at the entrance may be caught as a curtilage building, despite having been in separate ownership for a considerable time, and not appearing individually on the List, and so may the garden gazebo.
In deciding if proposed works affect the character of the building, and therefore require Listed Building consent, a judgement is exercised. Conservationists often look to preserve the historical evolution of the building, rather than restoring it to or fixing it at one particular stage of its life.
Typically, the putting in and taking out of interior walls, partitions, external openings, both doors and windows, roof lights, and changes to building finishes will be regarded as significant, and “restoration” to an earlier form or style will not automatically avoid Listed control, except if they solely involve the removal of unauthorised work carried out after the date the property was Listed. All of this is a separate issue from the merits of whether or not particular works should be permitted, which is outside the scope of this article.
Those who commission or carry out works to a Listed Building without the necessary Listed Building Consent expose themselves to the risk of prosecution. There are very limited defences, and nowadays any criminal conviction can have serious and wide ranging implications, particularly for contractors who tender for Government or other major projects, or individuals who for whatever professional or personal reasons may be subject to personal checks and screening, such as for shotgun or pilots’ licensing, or approval as adoptive parents. There is a very restricted particular defence that the works were urgently necessary in the interests of safety or for the preservation of the building (Section 9 (3) ), but subject to strict limits and requirements.
It is no defence at all to show that the works were carried out as a result of a dangerous structure Order under Sections 77-79 of the 1984 Building Act, perhaps following a fire or accidental damage. Typically in these circumstances temporary shoring up, and possibly highway closure, may be necessary while an attempt is made to obtain Listed Building Consent for either demolition or works, all at the Owner’s expense, and there is no presumption that consent will be given. Neither is there any special exemption for works necessary to provide disabled access, fire escape routes, or meet other Health and Safety requirements.
Planning Authorities also have powers under Sections 54 and 55 of the Act to carry out urgent works to preserve (but not improve) a Listed Building, or to require the Owner to do so. Other than this, there is no general duty or obligation to put or keep a Listed Building in a good state of repair. Some Authorities are however quite creative in the use of Notices served on the owners and occupiers of buildings under Section 215 of the Town and Country Planning Act 1990, requiring them to carry out repairs and other works so the building does not adversely affect the amenity of the area.
When work has been undertaken to a Listed Building without obtaining any necessary Listed Building Consent, there is no time limit at all on the service of a Listed Building Enforcement Notice requiring remediation. This contrasts starkly with the ordinary Planning control situation, where 4 and 10 year statutory immunity periods apply. The owner for the time being of a Listed Building could for example be required to take out the UPVC windows put in after the date the property was Listed, but by a previous owner, even say 15 years ago, and to put in bespoke timber frame windows all at his own expense. There is a right of Appeal, similar to any ordinary Planning Appeal process, where the works will be assessed on their merits, and there is also a procedure for obtaining retrospective consent.
For construction professionals the overall message is to be aware of the true legal position, and the risks which are there as a result of any involvement with or near a Listed Building, whether as owner, occupier, or contractor. Use as the starting point the basic legal position set out, and if in any doubt check the relevant paperwork carefully, ask questions, seek competent advice, and reject the all too commonly repeated myths. Be aware of the legal position, so that any risk you do take in instigating or accepting unauthorised work is the result of a calculated informed decision.
Published 30/06/2009. The author of this article is Isabel Diver
