Wednesday, 29 February 2012

Listed Building Control problems (continued)

Where I receive a substantial or lengthy comment in response to a post, I prefer to give it a post of its own rather than tucking it away in a comments box. So I am very pleased to publish this item from a reader in North Wales who, for obvious reasons, would prefer to remain anonymous.

Commenting in response to my piece on the current listed buildings enforcement row in Llandudno, he writes: “As a planning consultant based in Conwy, this is creating an almighty stir; one premises that I know of undertook modernisation in the 1980's to pebble-dash, insert UPVC windows and RWGs etc with the benefit of Council Grant Aid. Conwy has used 'exceptional' circumstances on at least one major Promenade Hotel to justify UPVC and has never really come up with anything to justify that ‘relaxation’.

It has a development plan adopted in 1981 (LP) and 1993 (SP).

I don’t have an axe to grind; far from it, and I'd be the first to support robust action where appropriate, but I find myself wholeheartedly endorsing this post; heavy handed persecution of the owner of premises (many of who won’t even have carried out the works themselves) that sustain a lovely resort will do nothing to foster the spirit of trust and engagement that will be needed to resolve this.

I assisted (very belatedly) on a recent appeal on an unlisted building within this Conservation Area. Despite evidence that 50+ percent of buildings had been altered with UPVC the Inspector held the character was harmed and test of preserve or enhance not met. In the circumstances (following S73A to retain works including replacement UPVC) the dismissal was unsurprising. (I would add that I was instructed after the LPA issued its hearing statement and advised the appellant to withdraw the appeal, sit tight and wait as bigger fish were about to be fried and he might get under the 4 yr bar if he was lucky and waited for a notice.

My concluding comment is that this authority has limited resources. A series of LB/174 inquiry cases would be extremely difficult for it to manage and resource. It would be far better for the LPA to look corporately and strategically with the hotel associations, ‘Visit Wales’, Welsh Government and CADW to secure a targeted programme of grant aid to assist in dealing with the worst examples and build some bridges. Many of these hotels are small family run enterprises that are marginal in terms of viability, where the cost of replacement may finally tip the balance against their survival.”

Maybe the answer is for the hoteliers and other affected property owners in Llandudno to pile in with robust s.174 appeals. Some political pressure could no doubt also be brought to bear at member level to put a stop to this nonsense. Like my anonymous contributor, I have no problem with firm enforcement action when it is justified, but it must be proportionate. Serving Listed Building Enforcement Notices on alterations carried out 25 or 30 years or more ago is not proportionate. A concerted approach by affected property owners in Llandudno might well stop this over-zealous LPA in its tracks, which could then be followed (as my correspondent suggests) by a co-ordinated and co-operative approach involving all interested parties.

© MARTIN H GOODALL (with due acknowledgement to my anonymous contributor)

Tuesday, 28 February 2012

Listed Building Control problems

A row is brewing up in Llandudno over Conwy County Borough Council’s crackdown on unauthorised alterations to listed buildings in the town. This particularly affects the town’s Victorian hotels, where replacement windows were installed as long as 20 or 30 years ago in some cases.

The problem is that whereas the 4-year rule applies so as to limit the time within which enforcement action can be taken against unauthorised building works or external alterations which should have had planning permission, there is no limitation period for the enforcement of listed building controls, so that any unauthorised alterations to a listed building which took place on or after 1 January 1969 remain vulnerable to enforcement action for ever.

Hence, over-zealous enforcement officers in Conwy CBC have started a crusade to force owners of listed buildings to removed unauthorised replacement windows in Llandudno, even where these have been in place since the 1970s, and the town’s hoteliers (who are the group most affected by this officious campaign) are up in arms about it.

Council officers have been unrepentant so far about their draconian action, but it throws a harsh light on the unfairness of a system which can lead to listed building enforcement action being taken against the owner of a listed building who may have had no idea that a previous owner had carried out unauthorised alterations up to 43 years ago!

I previously mentioned a case where an owner of a listed building in London was obliged to appeal against an enforcement notice which alleged that a dormer window had been removed without listed building consent. The owner, who had no knowledge that there been any unauthorised alterations to the building, was put in an extremely difficult position, and it was only the fortuitous discovery of an old photograph proving that the dormer window had in fact been removed long before the building was listed that prevented the enforcement notice being upheld.

I am aware of a listed building not far from here whose listing description includes the information that it had, among other features, “parapet, two dormers behind”. The LPA, if they ever take a close look at the building, will discover that the dormers are absent, as is the stone or brick parapet, in place of which there is a wooden fascia board. A keen enforcement officer might conclude that there have been unauthorised alterations to this listed building, but the fact of the matter is that this building never had dormers in the roof, nor was there ever a parapet – only a fascia board. The listing description is simply wrong! Fortunately, the building in question is fairly prominent in the townscape and appears in numerous photographs going back well over a century, which prove these facts.

Local planning authorities should therefore be cautious in their approach to listed building control, and should be absolutely sure of their facts before launching enforcement proceedings against allegedly unauthorised alterations to listed buildings. There is also a need for a more proportionate approach where the unauthorised alterations have been in place for a considerable period of time. Whilst the need to protect listed buildings clearly makes it inappropriate to apply the same 4-year rule to listed building control as applies to other unauthorised development, there is a need for some reasonable limitation period, even if only informally applied, and the hoteliers of Llandudno are surely entitled to expect that they should not be required to remove windows which were installed some 25 or 30 years ago. Enforcement action in such cases serves only to bring the planning system into disrepute.


Friday, 17 February 2012

Listed Building Control

A comment was left the other day by “GV BSC(Hons) BTP DipArchCons MRTPI IHBC” in response to my post on proposed changes to Listed Building control (published on 3 December last year). Although I disagree with one or two of the points made, I thought it deserved a proper airing here.

My anonymous correspondent writes: "I am concerned that your proposed changes to the system of control shows a lack of understanding of what is the ‘special architectural and historic interest’ of a building, or indeed how an old building functions.

Two points.

‘Materially affect the basic structure’. Who makes that judgement? No more précis than that laid out in Section 7 of the Act at present.

You seem to be suggesting that if it is not structural then no consent is required? So no need to remove 400 years old timber screens, or remove plaster wall paintings then (which I see in grade II buildings)? But you would need consent to remove the modern wall put in that was put in for structural reasons, but now intended to alter? You show no understanding of plan form or conservation of historic fabric. The irony is that I see in buildings what I see in museums. Why do we value it in a glass case, but not in the building where it belongs.

Buildings of traditional construction function differently. Moisture travels through them, and if modern materials are used inappropriately then can decay, and become unpleasant places to live. People pour money into them carrying out ill advised and useless work when a traditional approach would work and be cheaper.

I look forward to the resurvey that includes interiors. I think a number of buildings will drop out of being listed, whilst others will prove more important. I know a number of 15th C buildings that were re-fronted in the 17th or 18th C, and are far more important and rare (if you are of the view that historic buildings are important) than first look from the outside.

I disagree with your assertion that “There are very few interior features in Grade II listed buildings which are of special architectural or historic importance in themselves, and so there would be comparatively little risk of significant features being lost in this way” What do you base this view on? I am a conservation officer in a local authority with getting on for 5000 list entries, and I constantly find features of ‘special architectural or historic importance’ which are not noted on the listing. Think of a mill building, which might mention the water wheel and if you are lucky how many grinding stones there are. In your world all the other machinery could be removed, as it is not structural and not noted in the listing.

I can see a way forward on prior notification, which would save the resurvey. An owner notifies the LPA of the proposed works and the LPA can agree to those works without a consent, or a consent is required. The comparison would be Agricultural Notifications. It would remove a large number of innocuous minor changes from the system of control, allowing low-level changes to be made which are not damaging, and indeed some of which should be encouraged! It does mean though that the LPA needs someone who knows what they are doing.

It is all about babies and bath water. We need to conserve what is important, whilst allowing buildings to continue in use and be relevant. At a housing level it often about getting the right person for a building, the one person may aspire to a large farmhouse kitchen in a three cell cross passage house, looking to destroy four hundred years of history, whilst the for the next the layout is ideal. On that basis is the loss of historic fabric acceptable?

Not all change is justified in the historic context, and I am concerned that a rush to simplify will result in the destruction of much of the history that relates to the ordinary man without any real knowledge of what is being lost. Hence the need for a resurvey. Unless of course we properly use section 7, and have a system of prior notification when there would be no need for this.”

In my article on 3 December I was primarily reporting the government’s proposals for reform of the listed building control regime, but I added my own spin to it, and it is this aspect of my piece to which ‘GV’ clearly takes exception. Admittedly I had my tongue partly in my cheek, and would not necessarily press for all of the further changes I suggested, and in any event the government is clearly stopping somewhat short of that.

I confess to being slightly surprised that “400-year old timber screens” or “plaster wall paintings” are to be found in Grade II buildings. The presence of such features would suggest to me that such a building ought to be upgraded to II*.

However, it might surprise GV to learn that I live in a listed building myslef and that I share his concern about the need for the use of sympathetic materials in repairs and alterations, which will allow the walls to ‘breathe’. Our predecessor had damp problems in one wall, which we quickly solved by having the Portland cement pointing on the outside of the wall raked out and replaced with lime mortar, following which the wall was lime-washed (as it had been historically) and by having the inside of the wall faced with lime plaster. We also did quite a few alterations and an extension, all of which were carried out with Listed Building Consent, and all were sympathetic to the form and history of the house.

Incidentally, the prior notification procedure which GV suggest is very similar to what was required up to 31 December 1968. Provided there is an effective sanction which will apply where work is carried out without going through the prior notification procedure, this might be a practical way forward. Where it fell down under the pre-1969 rules was that there was no effective sanction against failure to comply with the procedure, which is why we then got the current LBC system instead, which came into effect on 1 January 1969.

Notwithstanding these points, I think there is scope for further liberalisation of the LBC regime, and some of the ideas I originally put in the mouth of ‘Jim Hacker’ back in April 2010 might be worthy of further consideration.


The planning process - yet more nonsense

The bureaucratic nonsense I mentioned in a post on 7 February did not end there.

I got a further email from an admin officer in this LPA telling me that I had used an out-of-date form of local validation checklist, despite my having downloaded this from the Council’s website and also having confirmed with this officer or a colleague (there seems to be some doubt now as to who took my phone call) that the short form of checklist for LDC applications was the right one to use.

The new form of local validation checklist, which this authority insists must accompany all applications, applies to all types of application without exception. Thus I was obliged to state which of 26 items on the checklist was required and to return the completed checklist to the Council. The answer to 25 of the 26 questions was, of course ‘NOT APPLICABLE’, because this was an application for an LDC, and all bar one of the items listed in the checklist are clearly irrelevant to an LDC application. The one applicable item was “Plans and Drawings”, because the application naturally included a site plan. Surely it did not need a checklist to tell the Council’s officers that the application was accompanied by an appropriate site plan!

Needless to say, this makes the Council’s insistence on this form being completed somewhat pointless in the circumstances. This was a perfectly straightforward application for a Certificate as to the Lawfulness of an Existing Use or Development, and the Local Validation Checklist is obviously irrelevant to such an application.

Some of my correspondents have strongly suggested that I should name and shame the planning authorities who are guilty of this sort of bureaucratic nonsense, so I shall do so. The authority involved in this case was Tandridge District Council in Surrey. I don’t know what earthly good they think they are doing by coming up with these daft requirements, but they certainly succeed in irritating applicants and their agents.

The other authority which asked for TWELVE copies of all plans and drawings, by the way (“for consultation purposes”) was Manchester City Council, but that was a couple of years ago, so I hope they have mended their bureaucratic ways since then.


Monday, 13 February 2012

Large banner adverts on shrouded buildings

One of the most unsatisfactory areas of town planning from the point of view of the ‘consumer’ of planning services is outdoor advertising. The negative attitude of planning authorities and the unsympathetic approach of the Planning Inspectorate to advertising appeals is immensely frustrating.

I have acted in several cases involving large banner adverts on buildings which are either awaiting demolition or are undergoing reconstruction or major refurbishment. Temporary banner advertisements, displayed for no more than 12 months at most, would be a great improvement on the appearance of such sites and would brighten up the townscape immensely. Yet time and again planning authorities set their face against any such display.

What prompted these thoughts (and a letter which I wrote to Planning magazine at the time) was a heartening example of a more enlightened approach which I came across a couple of years ago on an all too brief visit to Venice (which as I am sure everyone knows is a World Heritage Site). The Doge’s Palace was undergoing major refurbishment, and the scaffolding and safety shrouding was hidden by a large advertisement display. Another large banner advertisement was similarly displayed on the loggia facing the Doge’s Place in the Piazzetta. Obviously these displays were only temporary and, as soon as the repairs and refurbishment were completed, the advertisements were no doubt taken down so that these important buildings can once again be seen to full advantage.

The point is that, in the meantime, there was clearly no objection to a temporary advertisement display on the buildings while they remained shrouded in scaffolding. Clearly the Italian authorities were satisfied that a temporary advert display of this nature is perfectly acceptable, even in a World Heritage Site such as Venice. So what earthly justification can there be for English cities resisting similar temporary displays on buildings in their city centre?

In writing this, I appreciate that the large banner adverts in Venice were somewhat controversial, although it was well-meaning (but misguided) British-based 'conservationists' who were kicking up most of the fuss.

The plain fact is that banners hide eyesores. While a building either stands empty awaiting demolition or is covered in scaffolding and netting as the cladding is stripped off or other work is carried out on the building, the result is an eyesore which does nothing to enhance or improve the townscape. In such cases, banner advertising to hide such eyesores is an attractive alternative, which will liven up the townscape for a short time until the building works are completed. The essential point is that such a banner display is necessarily temporary, and will be removed as soon as the scaffolding is taken down from the building in question.

There was a prime example in Bristol a few years ago. A life-expired office block was being converted into a hotel. The works involved the building being stripped right down to its bare bones, and it looked awful. Clients for whom I acted sought to erect a visually striking banner display which would have been a great improvement on the ugly skeleton of the building while it was being gutted and refurbished, but their efforts were ultimately frustrated by the attitude of the LPA, despite an earlier grant of Advertisement Control Consent.

© Martin H Goodall LARTPI

Tuesday, 7 February 2012

Powers of entry and RIPA

HW left a comment on my recent post on "Powers of entry". This was rather too long to publish in the comments box, and I felt that the points HW has raised are of sufficient importance to be given their own post in the body of the blog.

HW writes: “Thanks for posting about this case [see the previous post on this topic]. I have attempted to research rights of entry in the past. I get reports of people essentially being harassed by planning officers who repeatedly make visits under these powers with no warning or notification and after the visit no enforcement action is taken, yet they still continue to make repeated unannounced visits whether or not more development has taken place. Certainly, there must be limits to their rights of entry and it seems that in this case the magistrates agreed that there are limits. Is there a way to read online about the decision taken by this court?

Another question is where do rights of entry end and surveillance under RIPA begin? Many people report planning officers are "spying" on them - systematically making unannounced visits without making themselves known on the property and covertly photographing (sometimes with telephoto lenses) and observing owners covertly even though the owners are present on the property. The legislation is quite clear that when exercising rights of entry the officer must produce written authorisation and identification when asked for it. This suggests these elements are conditions that must be met if required by the owner in order for the officer to exercise these rights legitimately and therefore, they are required to make themselves known to the owner or occupier who is present. Repeated covert behaviour of this sort seems to me to come under RIPA, not "rights of entry" for which an entirely different authorisation is required.

What is "written authorisation" in your opinion? Some planning authorities claim certain officers are delegated these powers and these officers carry identification cards only and some of these ID cards say on the back they have been delegated powers of rights of entry. Is this sufficient in your opinion?”

I have not previously had to consider the point HW has identified, although a client very recently complained to me of repeated visits by planning officers, and I referred him to the recent case which came before the Abergavenny bench. The only reports of this decision that are available are press reports (for example and - these are not links, but you can copy and paste them into your web browser). A magistrates’ court is not a court of record, so their decisions are not formally recorded, nor are their decisions of any precedent effect. I was careful for that reason to explain in my original commentary on the case that no great reliance can be placed on this decision (which might yet be subject to appeal by the LPA); it is simply an example of a court declining to issue a warrant when they feel there is no justification for doing so.

I believe that HW may have a point in what he says about RIPA, and it is something which we do perhaps need to consider, and which LPAs in particular need to take on board. I acted for a defendant a few years back against a prosecution for display of an advertisement in breach of the Control of Advertisements Regulations (which took the form of signage on a pub). We were all set to defend the action when the LPA suddenly withdrew the case, because they realised they had failed to comply with the requirements of RIPA in gathering the evidence on which the prosecution was based. HW also makes some valid points about other aspects of the power of entry. There is reason to believe that this power is being abused in some instances.

Enforcement action in the planning context is, of course, of a different nature than criminal investigations, and arguably the gathering of evidence as part of an investigation leading to the service of an enforcement notice would not need to comply with RIPA. But in view of what HW has said, we should perhaps reconsider the matter to see whether and, if so, in what circumstances certain aspects of RIPA might possibly become applicable.

© MARTIN H GOODALL (with acknowledgements to HW for his contribution)

The planning process – more nonsense

I had personal experience recently of the irritations caused by current bureaucratic nonsense in the planning system. I had submitted an application on behalf of a client for a Lawful Development Certificate, relating to an existing use or development. In addition to the application form, I had sent (in triplicate, of course) a bundle of statutory declarations and exhibits, which included site plans, photographs and other supporting documents, all of which had been referred to in the covering letter.

A week later a got a letter from the LPA saying that the application was invalid because it had not been accompanied by a check-list in accordance with the LPA’s validation requirements. A telephone call to the LPA made it clear that they would absolutely refuse to register the application without this vital information.

I duly downloaded a copy of the relevant check-list from the Council’s website. This contained only three items:

Other plans - YES/NO
Photographs - YES/NO
Supporting information - YES/NO.

I ticked ‘Yes’ to all three items and sent it off. I hope it makes some admin officer in this particular LPA happy.

This sort of thing is, of course, complete nonsense, but it is quicker and cheaper to comply than to argue about it. But it is no wonder that there is widespread dissatisfaction with the planning system, especially among the business community. I am completely convinced that it is pettifogging procedures like this which create this impression, rather than the substantive development control (or development management) process itself.

If planning officers wish to shake off their unfortunate public image, scrapping local validation requirements like the one cited above would go a long way to changing public perceptions of the planning system. But while nonsense of this sort continues, the calls for more fundamental and possibly damaging changes to the planning system will persist.