The Enterprise and Regulatory Reform Act 2013 has introduced a new section 26H into the Planning (Listed Buildings and Conservation Areas) Act 1990 to introduce certificates of lawfulness of proposed works to listed buildings. This is modelled on the lawful development certificate regime which applies to the need for planning permission.1 These provisions came into force on 6th April 20142 and procedural details are set out in the Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014 and the rules and regulations on planning enforcement appeals.

The certificate system only applies to proposed works. It is not possible to apply for a certificate after the works have been carried out as the government did not want to encourage owners to carry out works first and then seek a determination that consent was not required afterwards.

By section 26H(1) a certificate application may be made by ‘a person who wishes to ascertain whether proposed works for the alteration or extension of a listed building in England would be lawful’. In principle works may be lawful for a variety of reasons: if they do not alter the building (such as the removal of a statue which is not part of the listed building), do not affect the special interest of the building or are consented by a listed building consent, development consent order, listed building consent order or heritage partnership agreement. Indeed lawful development certificates in respect of planning control3 may be granted for actions which are lawful for any reason.

However the meaning of ‘lawful’ in section 26H is problematic. Section 26H(2) says that ‘For the purposes of this section works would be lawful if they would not affect the character of the listed building as a building of special architectural or historic interest’. This raises two issues. Firstly carrying out works in breach of a condition on a listed building consent would be an offence under section 9(2) and so not lawful in any ordinary meaning of the word. The second is whether subsection (2) is exclusive or whether works could be lawful for the other reasons discussed above.

The application must specify the building and describe the works, be in a prescribed form and accompanied by statements justifying the application.

No consultation or publicity is required in the legislation. Local planning authorities may choose to consult English Heritage or specialist conservation bodies or to publicise an application.

If the local planning authority are provided with ‘information satisfying them that the works described in the application would be lawful at the time of the application, they must issue a certificate to that effect; and in any other case they must refuse the application’. They are though allowed to allow or refuse an application for all or part of the listed building or the works.

Where a certificate is refused, allowed in part or the description modified, the decision notice must ‘state clearly and precisely the authority’s full reasons for their decision’.

The works in a certificate are ‘conclusively presumed to be lawful’ provided that they are carried out within 10 years beginning with the date of issue of the certificate and the certificate has not been revoked.

Certificate of lawfulness appeals

There is a right of appeal to the Secretary of State against refusal of the application in whole or in part, modification or substitution of the description or a failure to determine the application within six weeks or any longer period agreed in writing. Notice of appeal has to be given within six months.

Appeals determined by hearings or inquiries are subject to the enforcement notice appeal rules. An appeal will be allowed if refusal was, or would not have been, well-founded.4

Revocation of works certificates

Revocation of a certificate by the local planning authority is only possible:5

“if, on the application for the certificate –

  1. a statement was made or document used which was false in a material particular; or
  2. any material information was withheld.”

High Court challenges to certificate decisions

A local planning authority’s decision to grant a certificate could be challenged by judicial review in the Planning Court. A decision on an appeal would be challenged by an application to the court under section 63 of the Listed Buildings Act.

This article is based on the Supplement to Historic Environment Law published by the Institute of Art and Law http://www.ial.uk.com/helsupp.php