Most people are aware of the existence of listed buildings but unfamiliar with the implications of owning one. Here we look at what listing really means and what the implications are if unauthorised works are carried out.
Listing is the way that a building or structure of special architectural interest is recognised by law through the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, as amended.
There are three categories of listed buildings:
Category A buildings are of national or international importance, either architecturally or historically; are largely unaltered; and our outstanding examples of a particular period, style or building type.
Category B buildings are of regional or more local importance; may have been altered; and are major examples of a particular period, style or building type.
Category C buildings are of local importance, are lesser examples of a period or style or building type; and are as they were originally constructed or only moderately altered.
Listed buildings are managed as part of the planning system, through Listed Building Consent (LBC). Any proposed alterations to them must be considered carefully in order to ensure that they are appropriate and sympathetic to the character of the building. LBC is separate to planning permission and both may be required for intended works.
Listing covers both the outside and the inside of the building, regardless of which of the three categories it is in. Furthermore, any object or structure within the curtilage of a listed building, though not fixed to it, may be considered as listed. For example, the boundary walls or stables of a country house or the railings of an urban property may not be named or described in the listed building record but could still be part of the listing. You should consult your local planning authority to ascertain exactly what is covered by the listing.
If you wish to alter, extend or demolish a listed building, your local planning authority will confirm if LBC is required. You will usually need LBC for any works which affect the character of the building. This may include relatively minor works such as replacing or making changes to windows and doors or erecting signage. You are unlikely to require LBC for like-for-like repairs but Historic Environment Scotland recommend that confirmation is obtained from your local planning authority before commencing any works.
Demolishing, altering or extending a listed building without LBC is an offence. The guilty party is liable on summary conviction to imprisonment for a maximum of six months or a fine not exceeding £50,000, or both, or on indictment to imprisonment for a maximum or two years or an unlimited fine, or both. In determining the amount of any fine to be imposed, the court shall in particular have regard to any financial benefit which has accrued or is likely to accrue to the defender as a result of the offence.
Where it appears to a planning authority that unauthorised works have been or are being executed to a listed building, they may raise an action for interdict or issue a Listed Building Enforcement Notice (LBEN). The LBEN will specify the alleged contravention and will require certain steps to be taken to restore the building to its former state or to bring the building to the state it would have been in if the terms and conditions of any LBC had been complied with. You cannot be required to undo any changes made before the building was listed. In conjunction with an LBEN, the planning authority can issue a ‘Stop Notice’ where they consider it expedient that any relevant works should cease before the expiry of the period for compliance with the LBEN. Separately, a ‘Temporary Stop Notice’ can be issued pending the local authority taking some other form of enforcement action in relation to the alleged contravention. Failure to comply with any of these notices is an offence and can incur a fine of up to £20,000 on summary conviction, or an unlimited fine on indictment.
In terms of current legislation, the requirement to obtain LBC for relevant works never expires. In practice this means that if you are purchasing a listed building which has been altered or extended in any way, your solicitor will request from the seller sight of either (i) satisfactory LBC paperwork; or (ii) written confirmation from the local planning authority that LBC was not required. If neither is available, in order to protect your position, an application should be made by the seller for retrospective LBC.