Anyone intending to alter or extend a listed building must pay careful attention to the rules regulating development of listed buildings or they risk severe penalties. Where such works have been carried out without consent or in breach of a condition, this blog entry explains the three options available to the local planning authority to enforce against that breach: criminal prosecution, enforcement notices and injunctions. These options are not mutually exclusive and can be progressed in parallel. This blog entry does not address demolition, in respect of which different rules apply.
Importantly, not all works require listed building consent, only those that would affect the character as a building of special architectural or historic interest, and this is not dependent on the scale of the works. If there is any doubt about whether this threshold is met in respect of proposed works, we strongly recommend that you enter into discussions with the relevant local authority before beginning the works.
1. Criminal prosecution
Under the Planning (Listed Buildings and Conservation Areas) Act 1990, it is a criminal offence to carry out or cause to be carried out any works to alter or extend a listed building in any manner which would affect its character as a building of special architectural or historic interest. It is also an offence to fail to comply with a condition of a listed building consent. This is the case even if no enforcement notice has been issued. By contrast, it is not an offence to extend or alter an unlisted building without planning permission and it is only an offence to fail to comply with a planning enforcement notice.
The offence is committed by the person who carried out the work or by anyone who caused them to be carried out. This could include, for example, the builder, architect, occupier or owner. Prosecutions can be brought against both a company as a whole and individual employees and directors of that company.
There are some limited defences, such as that the works were urgently required in the interests of health and safety or for the preservation of the building, but it is not a defence to claim ignorance as to the building's listed status.
Retrospective consent can be granted for unlawful works. However, the grant of consent does not prevent prosecution, as the offence has already been committed.
The maximum penalty is two years' imprisonment and an unlimited fine. When deciding the amount of the fine, the court will have regard to any financial benefit which has accrued or appears likely to accrue in consequence of the offence. The court may also make a confiscation order requiring the defendant to pay the sum of money derived from his/her criminality under the Proceeds of Crime Act 2002.
2. Enforcement notice
In addition, or instead, the local planning authority may issue a listed building enforcement notice. This notice will require steps to be taken to restore the property or to alleviate the effects of the unlawful works. The notice can be served on the owner or occupier of the property or on any other person having an interest in that property which is materially affected by the notice, regardless of whether they carried out the unlawful works. An offence is committed by the owner (only) of the property if the listed building enforcement notice is not complied with, and there is a power for the local authority to enter the property, carry out the required work and then recover its reasonable expenses in doing so from the owner.
There are no time limits within which a listed building enforcement notice must be issued and action could be taken many years after the work was carried out. However, an authority should take into account the length of time that has elapsed since the breach was committed in deciding whether it would be expedient to issue a notice. This is different to planning enforcement where strict time limits apply.
A local authority may also apply to the court for an injunction to stop works taking place. This is possible whether or not they have exercised or are proposing to exercise any of their other powers explained above. Injunctions are considered to be a draconian remedy and are infrequently used. However, an authority may consider it necessary to prevent anticipated unauthorised works, to take urgent action to prevent further degradation or to compel compliance with an enforcement notice where the authority considers it unlikely that the defendant will do so.