A recent case in Warwickshire highlights how seriously planning authorities view the altering of listed buildings without the required permission. Strict liability applies in most listed building cases; only in very limited circumstances (see below), are unauthorised changes or works permitted.
In this particular case the substitution of modern materials for the original lime plaster on interior walls and the use of softwoods to replace the original oak roof timbers landed an architect in court. After pleading guilty to the criminal offence of carrying out unauthorised works to a listed building, Mr Shepherd wound up with a £4,000 fine and an instruction to pay Stratford upon Avon District Council’s legal fees of £10,000.
Architect held liable
It is the responsibility of the owner, his/her agent and the contractor carrying out the works to ensure that the necessary consents for the work have been obtained and it is for the Local Planning Authority to decide who to prosecute in their absence. In this case, it was the architect, rather than the owner, who was punished for flouting the regulations on the basis that he ‘should have known better’ and who ‘knew that permission was required’. According to the court, the owner of the property, an 18th century farmhouse, had commissioned Mr Shepherd to oversee the project which included getting the necessary permissions. This was an entirely reasonable expectation given that he had previously been employed as a listed buildings officer by Stratford District Council, a fact which made this prosecution particularly compelling. Given his experience, Mr Shepherd’s actions in allowing the use of inappropriate materials amounted to negligence: as an expert in such matters, he should have known that this amounted to a criminal offence.
Is your building listed?
The Department for Culture, Media and Sport, assisted by Historic England (which holds the searchable register of listed buildings), oversees the grading process of those buildings considered of ‘special architectural or historic interest’. It is worth noting that virtually every house built before 1840 is either listed, or eligible for listing, and of the 375,588 listed buildings in England 2.5% are Grade I, 5.5% are Grade II* and 92% are Grade II. Anyone wishing to make alterations to either the exterior or interior of a listed building must obtain Listed Building Consent “LBC”) - even if normal planning permission is not needed - if the change is likely to alter the building’s special architectural or historic character. A change in the law in 2013 means that there are circumstances when LBC is not required, for instance reinstating original features such as sash windows or cornices, but it is the local Conservation Officer who decides the circumstances and not the building owner.
Prosecuting those altering listed buildings without permission
Local Authorities have the power, under Section 9 of the Planning (Listed Buildings & Conservation Areas) Act 1990, to prosecute those who carry out building works on listed buildings without obtaining LBC. Although prosecutions are not particularly common, as it is not always easy for a local authority to check what changes have actually been made and by whom, if someone suspects that alterations to a listed building are taking place, then the local authority has a number of options open to it. It can:
- Issue an injunction to stop any further work taking place;
- Allow the works to continue to an appropriate standard providing they do not compromise the building’s ‘special character’ and apply LBC retrospectively;
- Issue a building enforcement notice
- Prosecute
If the local authority is presented with a clear-cut breach of Section 7 of the 1990 Act, then defendants do have the following statutory defence:
- that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building; .
- that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter; .
- that the works carried out were limited to the minimum measures immediately necessary; and
- that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.
Get permission – not a prison sentence
In Mr Shepherd’s case it would appear that the Local Authority was keen to make an example of him not least as his former experience as a listed buildings’ officer with the council meant that he knew Listed Building Consent was needed for the proposed alterations to the farmhouse. It is worth reiterating that owners of listed buildings should always ask the local planning authority’s Conservation Officer if LBC is needed for any proposed work on a listed building, however small the proposed works. If the changes do not affect the special character of the building, then it is more likely than not that the planning authority will confirm that consent is not required. This may hold the project up for a short while but that must be preferable to the alternative: a fine of up to £20,000 or six months in prison.
A common myth regarding time limits of enforcement
To bring the message home, unauthorised works to a listed building do not attract any immunity beyond the statutory defences outlined above. There is a common misconception that the immunity available for unauthorised works under the planning regime also applies to unauthorised works to a listed building. This is a myth and the two are mutually exclusive statutory regimes. There is a very good reason why some buildings are listed, namely to protect the special architectural features and/or historic interest. We would strongly advise you to seek professional help or speak to the conservation teams within the Council before you embark on any works to a listed building.
