2) LISTED BUILDING OFFENCES
• Breaches can result in prosecution / enforcement action, or both.
• Enforcement may be desirable for the benefit of the building. Works required may be sufficient to remedy the breach. Prosecution may act as deterrent where breach cannot be remedied..
• Injunction may be sought against continuing breaches.
• S7 & s9(2) P(LBCA) Act 1990 : Offence to carry out unauthorised works to listed building or fail to comply with conditions attached to consent. PPG 15 3.44
• Unauthorised work to a listed building constitutes a criminal offence whilst failure to obtain planning permission is a breach of planning law (civil)
• Offence is one of strict liability i.e. Ignorance of the law / listing is not a defence.
R v Wells Street Metropolitan Stipendiary Magistrates ex parte Westminster CC (1986)
Offence also to: Fail to comply with an enforcement notice (s43) or deliberately carry out an act likely to result in damage to a listed building (s 59)
• 1991 Planning & Compensation Act increased penalties :
• Magistrates Court. Summary conviction = max £20,000 fine/ 6 months imprisonment, or both.
• Crown Court. Conviction on indictment = unlimited fine, imprisonment -up to two years, or both.
• Defence: (s9 P(LBCA) Act 1990) Must prove all of:
• Works urgently necessary for safety or health, or for preservation of building. Unable to secure these by works of repair / temporary support or shelter.
• Works limited to the minimum necessary
• Written notice justifying works , in detail, was given to the planning authority as soon as possible.
• Successful Prosecution. Must show: building is listed , works were carried out, defendant was responsible, works affected the character of the building, works were not authorised.
b) ENFORCEMENT NOTICES
Local Planning Authorities, English Heritage in London & the SoS, can issue where unauthorised works carried out to a listed building, (s38 P(LBCA)Act 1990). PPG 15 3.43
• Notice specifies contravention and action required:
• To restore building to its former state
• Works to alleviate the unauthorised works if not practicable to restore the building.
• To bring building to state it would have been in, if complied with conditions relating to LBC
• Enforcement remedies specified breach .Cannot be used to alleviate previous unauthorised work.
Enforcement cannot be used to secure improvements to a building when compared to state prior to unauthorised works. Bath City Council v SoS for the Env. (1983)
• Listed Building Enforcement Notice must specify:
• Date of effect & compliance period ( flexibility allowed)
• Served on owner / occupier person with interest in building within 28 days of issue
• Notice served not later than 28 days before specified date of effect
• Right of Appeal. Grounds:
• Building not of special architectural / historic interest. Alleged matters not occurred or they do not constitute a contravention.
• Works urgently necessary for health & safety or preservation & limited to minimum necessary
• Consent ought to be granted, a condition discharged /different condition imposed.
• Copies of notices not served as required Notice exceeds that necessary to restore building to earlier condition. Specified period of compliance is insufficient.
• Steps required would not return building to its former state, exceed what is necessary to alleviate or to bring into the state had conditions been complied with
• Sec of State can vary terms of the notice. Non-compliance = fines, as per prosecution.
• Once compliance period ends, authority has right to enter, take the specified steps and recover costs from the owner.
• Notice does not lapse on change of ownership – on register of local land charges.
c) INJUNCTIONS PPG 15 3.47-3.48, s44A P(LBCA)Act 1990
• No “Stop Notice” procedure. Where Local Authority, English Heritage, Urban Development Corporations want to bring swift halt to unauthorised works:
• Application to the High Court . Offender does not have to be present, nor identity known.
• Failure to comply = fines / imprisonment as in contempt of court.
d) RIGHTS OF ENTRY S 88 P(LBCA)Act 1990
• Right of entry for anyone authorised in writing by LPA, English Heritage(in London) and Sec of State. Minimal notice required. Criminal offence to obstruct. Magistrates can issue warrant for forced entry.
• Used for listing, control of works and prosecution , enforcement action, Applications for revocation / modification of consents, appeals & prevention of deterioration and damage.
3) CASE LAW
Barrington Park case
NB: Pre-Shimizu. Grade I C18 Palladian style country house, extended in C19, by addition of two wings & porte cochere. Same family resident since 1730’s. Consent sought for demolition of C19 wings & restoration of C18 house plus small extension
Principal issues: Architectural merits of original & extensions Relative costs of proposals , Repair
• “Once in 75 year” scheme. Demolition/ refurb £3.3 mill. Repair of whole £5.2 mill.
• Poor architectural quality of C19 part. Demolition of wings would allow the property to become suitable for modern living
• C19th alterations respected original architectural style. Costed on “minimal intervention” - £0.8 million-demolition /refurb, £1.3 - repair whole.
• Demand existed for such houses. If wings demolished, number of potential buyers would fall..
• Alternatives existed : family remain in central portion & the two wings leased / sold.
Planning Inspector Held only two alternatives: demolition or minimal repair , no case to split
Dismissed appeal as not satisfied with detail of proposals.
Secretary of State held: Extensions not “mediocre” . Risk of damage to pre-1870 fabric from demolition. No evidence all efforts had been made to find a viable alternative use, nor that house could not be repaired to a minimal standard.
ii. PLANNING CONDITIONS
Newton Hall, Cambridge.
Grade II listed Planning permission granted for change of use subject to condition that section of nearby barn demolished.. Challenged on ground condition not lawfully imposed. Tests: Condition must fairly & reasonably relate to the development Change of use allowed building to be preserved & its appearance maintained. Demolition required to enhance setting of the building. Condition lawful as related to the change of use.
iii. LISTED BUILDING ENFORCEMENT
Laurel Cottages, Barnet .
Grade II Listed artisans dwellings within conservation area. Listed building consent granted for two small extensions. Property vacant and required repair.. Property sold to developer. Developer removed half of roof .Negotiations agreed repairs for each cottage. Included LB application for replacement of a metal window with timber to match others. Work on roof not prosecuted. Developer failed to apply for permission. Removed all internal historic joinery, and replaced with modern off the shelf fittings Fined £7500 & costs. Cottages marketed at £275000 each.
• ENFORCEMENT NOTICE
Noseley Hall Grade II* 1728, remodelled 1890.
Country House sale Paintings removed from two rooms which were considered original to the 1728 design. Enforcement Notices served – 7 paintings from study, 2 from the hall. Held the 7 paintings (set in panels above doors when owner rebuilt much of the hall) were fixtures as study designed on carefully conceived Georgian principles & intended to incorporate the paintings. Hall paintings =chattels as no architectural coherence in the ensemble.
• THE GORMAN CASE . ENFORCEMENT & PROSECUTION (Reported in Context )
Old Hall 1500, C17 lobby entrance range .C19th ranges behind. On “At Risk register” from 1991. Gormans purchased in 1993. Substantial works began, without consent, in 1994. Gormans warned that works were illegal but carried on.
34 items identified as work, not repair and required consent. 33 summons issued
14 Enforcement Notices served (one later withdrawn). Gormans appealed against all. Most upheld
Gormans prosecuted on 29 breaches & pleaded guilty. Argued house had been derelict & work necessary to make house habitable , and a building at risk had been saved. Fined only £14000. Partly accepted that had rescued a building at risk.
4) RELUCTANT OWNERS NB: DCMS responsibility
See S7 PPG 15.7.2 PPG 15 7.4.
Statutory powers against owners who will not take preservation action on listed buildings :
a) URGENT WORKS s54-s55 PPG 15 7.5-7.8
Permits carrying out of urgent works for preservation of listed buildings
Includes emergency works of temporary support & shelter. Minimum works necessary .
Applies only to unoccupied building or part of building.
Local Authorities, English Heritage (in London ) have power to execute.Minimum 7 days notice of intention to carry out works .Works must be clearly described in the Notice.
Costs (not excessive) recoverable from owner (s55)..
S76 Applicable to unlisted building in conservation area to maintaincharacter or appearance of area.
Owner can make representations within 28 days: Some / all works unnecessary , Amount specified is unreasonable , temporary shelter / supports continued for unreasonable length of time
SoS has regard to : Financial circs of the owner , size of the building , extent of work
Appeals unlikely to succeed where owners given sufficient time to complete work or where local authorities can defend costings via estimates.
b) REPAIRS NOTICES s48 Not widely used as authority has to be prepared to purchase
Where LPA / English Heritage (London) consider listed building not being properly conserved.
Protracted failure by owner to maintain property. Notice served on owner. Not confined to urgent works nor unoccupied buildings.Specifies works reasonable for it’s proper preservation
Minimum period for action =no less than two months. Compulsory purchase may be exercised if work not carried out. Works must relate to “preservation” ,not “restoration” Can include work for preservation having regard to condition when building was listed. Can reflect neglect & damage but not restoration of other features.
c) COMPULSORY PURCHASE (CPO) s47
Method of last resort. Proceedings begin once 2 months elapsed from service of Repairs Notice and reasonable steps have not been taken .CPO made by Local Authority or English Heritage . SoS for Culture must consult English Heritage before making / confirming order.
SoS must be satisfied it is expedient , means & resources to secure repair are available and may include land required for access.
Threat of CPO often sufficient to prompt works or sale to a third party. Only 13% cases reach inquiry.
s50 . Provides for minimum compensation where building deliberately allowed to fall into disrepair to justify demolition. Must be clear evidence of intention.
Onus on local authorities . Encouraged to set up back-to-back deals ahead of proceedings. Legal agreements set up whereby authority immediately sells on property once CPO completed. Authorities may identify private individuals or bodies with access to funds to execute repairs.
St Anne’s Hotel , The Crescent, Buxton . Grade I Listed Two Repairs Notices ignored. Further Repairs Notice issued. Owners given 3 months to exercise works with 20-25% grant. No action taken.
Draft CPO made. Owners objected and public inquiry set up.Owners then agreed to sell to District Council who purchased with grant from English Heritage & the National Heritage Memorial Fund.
Pell Well Hall Grade II* Owner sought consent to demolish from 1978 onwards. District Council compulsorily acquired building & land in 1990. Minimum Compensation directed of £1
Authority transferred ownership to British Historic Buildings Trust under back-to-back deal.
d) DANGEROUS STRUCTURES
• No automatic right to demolish listed building, subject to dangerous structure notice. Local Authorities first consider Urgent Works, Repairs Notice and CPO. If order appropriate, works specified still require listed building consent unless under s78 Building Act 1984. Authorities consider extent of work and whether no demolition , or minimal, is required.
e) ACQUISITION BY AGREEMENT S52 P(LBCA) Act 1990
Local authorities can purchase by agreement:
• A building appearing to them to be of special architectural / historic interest
• Land contiguous / adjacent to building required for reserving it’s amenities, affording access or for the building’s proper control or management.