Listed Building? Do you know the restrictions on development and works?

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If you are an owner of, or thinking of buying, a listed building then it is important to know the effect such listing has on any future development or works to the building and its curtilage. This information will help you understand the restrictions and legal issues on a listed building.

What is a listed building?

A listed building is a building which is included in a list compiled by the Secretary of State. The listed building will need to be of architectural and/or historic interest together with assessment of its age and rarity, aesthetic merits, selectivity, national interest and state of repair.

A listed building comprises each of the following:

  • the building itself – a building means any structure or erection and any part of a building (excluding plant or machinery in a building). For example a lamp post and telephone box could be a listed building
  • any object or structure fixed to the building – the objects and structures will need to be ancillary and subordinate to the building itself. It can include plant and machinery. Common examples are chimney pieces and wall panelling
  • any object or structure within the curtilage of the building that forms part of the land and has done so since before 1 July 1948 – whether land comes within the curtilage of a building depends on the facts and the nature for which the land has been held and used

There are three grades of listing with the higher the grade the harder it is to gain listed building consent. These are:

  • Grade I – buildings of exceptional national importance
  • Grade II* – important buildings of more than special interest and have some national significance
  • Grade II – buildings of special interest but of more local importance

A local planning authority can issue a building preservation notice which will extend the listed building provisions to unlisted buildings for a period of 6 months to allow consideration in such time for its listing.

Listed building consent

A listed building consent is consent of the local planning authority for works to a listed building. It is separate from grant of planning permission. It is required for any works for the demolition of a listed building or for its alteration or extension in any manner either of which affect its character as a building of special architectural or historic interest.

Whether proposed works will affect the listed buildings character as a building of special architectural or historic interest so as to require listed building consent is not always easy to determine and leaves scope for difference with the local planning authority. Accordingly, you should consider the following options before starting works:

– Listed Building Heritage Partnership Agreement (HPA)

The HPA is an agreement between the owner and the local planning authority (as well as any other interested party such as Historic England) which contains provisions granting listed building consent for the carrying out of specified works for the alteration or extension of the building and sets out any conditions attached to the consent. The HPA cannot be used to grant listed building consent for demolition. The HPA can also (amongst other things):

  • specify or describe works that would, or would not, affect the character of the listed building
  • make provision for the maintenance and preservation of the listed building
  • make provision for the carrying out or doing of any specified work in relation to the listed building

The benefit of a HPA is that, by agreement, it makes clear the understandings and expectations of both the owner and the authority as to how and what works can be carried out to the listed building during the period of the HPA. It is noted that the specified works will still require any other relevant consents such as planning permission.

– Certificate of lawfulness of proposed works to listed building

Certificates of lawfulness of proposed works are issued by the local planning authority providing formal confirmation that proposed works of alteration or extension (but not demolition) of a listed building do not require listed building consent because they do not affect the building’s character as a building of special architectural or historic interest.

The certificate cannot be issued retrospectively so it should be obtained prior to starting works.

– Check for relevant Listed Building Consent Orders (LBCO) and Local Listed Building Consent Orders (LLBCO)

An LBCO is a national order by the Secretary of State that automatically grants listed building consent for any alterations or extensions to a listed building. A local planning authority can make a LLBCO that automatically grants consent for any alterations or extensions to specific types of listed buildings or listed buildings in a specific area. Demolition is not permitted for either order.

– Obtain listed building consent

As demolition works are excluded from the above options, if in doubt as to whether the works will affect the special interest character of the building, then it is recommended that owners obtain listed building consent for any proposed demolition works.

Restrictions on permitted development rights

There are a number of permitted development rights that do no apply to listed buildings and which will require express planning permission from the local planning authority. An example is the erection of a building, enclosure (ie. fencing), pool or container within the curtilage of a listed building.

Affect on express planning permission

When considering express planning applications affecting listed buildings, the local planning authority is under a statutory duty to have special regard to the desirability of preserving any of the following: the building itself; the building’s setting; and any special architectural or historic features. If the LPA fails to pay attention to the desirability of preservation, the decision can be subject to judicial review.

Enforcement – unauthorised works

If unauthorised works are intended to be carried our or are carried out to a listed building without listed building consent, the LPA has the following powers:

– Prosecution

Prosecution will not remedy unauthorised works but will punish the offender and act as a deterrent. Liability attaches to both the persons who carried out the work in question and persons who allowed the work to be carried out.

To establish a defence, the defendant has to prove on the balance of probabilities each of the following:

  • the works were urgently needed for safety or health reasons or for the preservation of the building
  • it was not practicable to secure safety or health or the preservation of the building by repair or by temporary support or shelter
  • the works carried out were the minimum necessary
  • written notice was given to the LPA justifying the works carried out

The maximum penalty for carrying out unauthorised work to a listed building in an unlimited fine and/or up to 6 months (Magistrates Court) or 2 years imprisonment (Crown Court).

– Listed building enforcement action

The authority has the power to issue a listed building enforcement notice if works are undertaken to a listed building without listed building consent. The listed building enforcement notice can require remediation of unauthorised works to a listed building to bring the building back to its former state or where this is not practical or desirable to mitigate the unauthorised works. There is no immunity period for listed building enforcement action.

– Injunctive relief

The authority may apply to the County Court or High Court for an injunction to restrain “an actual or apprehended” breach, if the LPA considers it “necessary or expedient”.

How can we help?

If you have concerns or questions over listed buildings then please contact Brendon Lee to discuss further.