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.



  1. I can see both sides of this, when you purchase a listed building the very act of doing so places an enormous burden upon you so it is wise to explore all possible breaches of unauthorised works with the assistance of the local planning authority, ignorance of the law is no excuse is it?

    Now that inevitably affects the sale process and any vendor would be wise to consider the consequences of stirring this hornet's nest by simply putting the building on the market.

    Then there is the issue of any lending that may be required, should banks consider the matter when an application for a mortgage or loan is received?

    Having lived in North Wales all my life and seen the horrendous alterations made to some of the buildings in seaside towns (including ugly windows) I can only wonder how these things got past the planners for so long. It may be that new legislation always takes time to sink into the mindset of enforcement officers, a role which may not have existed within whichever local authority was responsible all those years ago. Is the answer some sort of moratorium? Or is it up to the LPA who listed the building in the first place to assist the unfortunate owners with grants?

    Is the answer to hand over responsibility for listed buildings, conservation areas, AONBs and NPs to yet another quango? I don't think so!

    The way things are going there will be more designated land and buildings than we will know what to do with, particularly in Wales. Might as well turn the country into a museum.

  2. Another interesting article. What does a potential purchaser of a listed building do if the description of the building in the list doesn't match what is there and the vendor is unable to assist as to why there is a discrepancy? A conveyancing Solicitor's nightmare!

  3. I run an occasional course on “Essential Planning Law for Conveyancers”, and this is a topic which always gets them worried! There is no easy answer. The history of the listed building really ought to be investigated back to January 1969 (or the date of listing, if later). Errors in the listing are a real imponderable. Photographic evidence is clearly the most reliable way of dealing with this.

  4. Similar but different.

    SLDC LPA , Kendal, Cumbria, have gone on a witch hunt on A-boards in the town used to advertise street side businesses.
    Some of the A-boards have been in place for years, but now the LPA bully boys are out in force theatening enforcement action and big fines for non-compliance to the rediculous demands.
    Just what the small businesses need in the current economical climate.
    Shame the LPA doesn't have more relevant work to get on with.

  5. What about alterations completed without consent to buildings within the boundaries of a listed building? or those within conservation areas? do these also fall outside of the four year rule?

  6. There are two possible situations here. First, if the curtilage building or buildings are within the listing (because they existed before 1 July 1948), then alterations to them would have needed Listed Building Consent, and there is no 4-year rule applying to this. On the other hand, if those alterations also constituted development under section 55 of the principal Act, then the 4-year rule would apply so far as ordinary development control is concerned, but it won’t be of much help, because the works would still be liable to Listed Building Enforcement, even after four years (in fact forever). The alternative scenario is that the curtilage building or buildings are NOT within the listing (because they did not exist before 1 July 1948), in which case alterations to them would not have needed Listed Building Consent. On the other hand, if those alterations constituted development under section 55 of the principal Act, which they would do if they affected the external appearance of the building (bearing in mind that PD rights would not apply in this situation) then the 4-year rule would apply in the usual way.

  7. I omitted to refer to alterations to an unlisted building in a conservation area. There is no control over these beyond ordinary development control. So the 4-year rule applies if the alterations were not permitted development (which they may have been).

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  9. In answer to Window Man - whether we like it or not, a significant change to the windows in a listed building (e.g installing double glazing or UPVC frames) will nearly always be regarded as an alteration that will affect the character of the building, therefore requiring Listed Building Consent. Changes of the kind mentioned will in most cases be resisted by conservation officers. Only like-for-like replacement (single glazed windows in traditional moulded timber frames of the same size and pattern as the existing windows) is likely to be acceptable. If the replacements are sufficiently close to the originals, both in materials and in their detailing and appearance, to be an acceptable replacement, then in that case they would be unlikely to be seen as affecting the character of the building and would not require Listed Building Consent.

  10. What a great blog this is! What about building a large garden shed within the curtilage of a listed building? The 4 year rule would apply in terms of planning permission, but what would the position be in relation to LBC?

  11. This is a point about which planning officers (and others) frequently get confused. If the development (in this case a garden shed) is not attached to the listed building or to any other pre-1948 structure within the curtilage, and so does not affect the fabric of the listed building (or the fabric of any other building within the curtilage that is listed, including any pre-1948 boundary wall, etc.), then this development does NOT required Listed Building Consent. Although development within the curtilage of a listed building will always require planning permission, it does not require LBC. So the 4-year rule does apply to unlawful development within the curtilage of a listed building (subject to the usual caveat about ‘concealed’ development).

  12. I sometimes see conditions requiring details of internal fitted joinery to listed buildings which is, presumably, fixed to new internal partitions or 'overlaid on' and 'scribed to' existing fabric. Is there any case law that establishes the remit of Planning Authorities in regard to such elements?

  13. The position regarding the imposition of conditions on a Listed Building Consent is the same as that in respect of conditions imposed on a planning permission. If the condition is relevant to the works authorised by the LBC and fulfils the other well-known criteria, it will be lawful. However, I am not aware of any specific judicial authority on the point raised by Passer-by.

  14. A correspondent recently asked me to clarify my reference in this blog post to works carried out to a listed building since 1st January 1969. Does this mean, he asked, that no enforcement action can be taken in respect of demolition or alterations carried out before that date?

    The answer is that, whilst statutory listing has applied since the 1947 Act came into force on 1 July 1948, the protection afforded to listed buildings was limited, and such enforcement powers as existed in respect of carrying out works to a listed building without complying with the requirement to give notice under the legislation then in force were largely ineffective. Amending legislation was therefore introduced in 1968 requiring an application to be made for Listed Building Consent and making it a criminal offence to carry out works affecting the character of a listed building as such without applying for and obtaining LBC where this is required. These provisions came into force on 1 January 1969.

    The current legislation does not provide for any time limit on enforcement action being taken in respect of works carried out without Listed Building Consent (in contrast with the position where development is carried out without planning permission). However, the absence of any requirement to apply for Listed Building Consent as such before 1 January 1969 means that no enforcement action can be taken in respect of works carried out to a listed building before that date. A local planning authority has no power to take enforcement action of any kind in respect of breaches of the previous legislation occurring before 1 January 1969.

  15. I am about to purchase a grade 2 listed cottage the windows look original but would like to replace like for like ,but the inside of the cottage as no original features left ,what should I do regarding permission to change the inside

    1. Any alterations to a listed building (whether external or internal) that would affect is character as a listed building require Listed Building Consent. Whether particular alterations will or will not materially affect the character of the listed building is a matter for the judgement of the LPA. My advice would be to err on the side of caution and apply for LBC if it could be argued that the proposed alterations could have an effect on the character of the listed building. Simple like-for-like repairs do not require LBC, but if modern materials are used (e.g. UPVC windows in place of wooden window frames), then this would require LBC (which would probably be refused in that sort of case). If in doubt, contact the conservation officer about it.