Breach of listed building control: listed building enforcement notices

This note looks at listed building enforcement notices, one of the methods available to local planning authorities to deal with unauthorised works to a listed building.

Contents

What is a listed building enforcement notice?

A listed building enforcement notice is one way to control works carried out to a listed building  (www.practicallaw.com/1-203-2715) without listed building consent (www.practicallaw.com/7-203-2717) or in breach of a term or condition attached to a listed building consent.

For further information on listed buildings and listed building consent generally, see Practice note, Special planning controls: listed buildings (www.practicallaw.com/2-386-7926).

A listed building enforcement notice can require a wide range of steps to be taken, within a specified time period, to:

  • Restore the building to its former state.

  • Carry out further works that the local planning authority (LPA) consider necessary to alleviate the effect of the unauthorised works, if restoration is not reasonably practical or desirable.

  • Bring the building to the state it would have been in had the terms and conditions of a listed building consent been complied with.

(Section 38(2), Planning (Listed Buildings and Conservation Areas) Act 1990 (LBA 1990).)

 

Power to issue a listed building enforcement notice

An LPA may issue a listed building enforcement notice where both of the following are satisfied:

  • It appears that works of demolition, alteration or extension have been carried out to a listed building without listed building consent or in breach of a term or condition attached to a listed building consent.

  • It is expedient to issue a listed building enforcement notice, having regard to the effect of the works on the special character of the listed building.

(Section 38(1), LBA 1990.)

A listed building enforcement notice cannot be issued against an anticipated breach of listed building control. If an LPA anticipates a breach of listed building control, it should apply to court for an injunction (www.practicallaw.com/6-107-6265) (section 44A, LBA 1990). For further information on injunctions, see Legal updates:

An LPA has a discretion whether or not to issue a listed building enforcement notice (Perry v Stanborough (Development) Ltd (1977) 244 EG 551). There is no obligation on the LPA to do so.

An LPA can prosecute, as well as, or instead of, serving a listed building enforcement notice. A notice is usually the preferred option as compliance with the notice can secure the restoration of the affected listed building. However, prosecution punishes the offender and can provide a valuable deterrent. For further information on prosecution, see Practice note, Special planning controls: listed buildings: Prosecution (www.practicallaw.com/2-386-7926).

 

No time limit for service

There is no time limit for the issue of a listed building enforcement notice.

In Braun v First Secretary of State [2003] EWCA Civ 665, the Court of Appeal held that breaches of listed building control can be enforced against an owner of a listed building no matter when or by whom the breaches were committed (see Legal update, An owner is liable for a breach of listed building control no matter when the breach occurred (www.practicallaw.com/4-107-1626)).

 

Content of a listed building enforcement notice

The listed building enforcement notice must specify each of the following:

  • The matters alleged to constitute a breach of listed building control (section 38(2), LBA 1990).
  • The steps required by the LPA to be taken, which may include any of the following:
    • restoring the building to its former state (section 38(2)(a), LBA 1990);

    • carrying out further specified works to alleviate the effect of the unauthorised works (section 38(2)(b), LBA 1990);

    • bringing the building to the state it would have been in had the terms and conditions of any listed building consent been complied with (section 38(2)(c), LBA 1990).

  • The compliance period within which the steps must be taken (section 38(3)(b), LBA 1990).
  • The date the listed building enforcement notice takes effect (section 38(3)(a), LBA 1990).

    See Effect of a listed building enforcement notice.

The notice should be drafted clearly and precisely to enable the recipient of the notice to understand the works required to remedy the breach.

 

Procedure for service

Timing of service

The listed building enforcement notice must be served:

  • Not more than 28 days after the date the notice was issued.

  • Not less than 28 days before the date specified in the notice as the date on which the notice takes effect.

(Section 38(4), LBA 1990.)

This allows the LPA to serve the listed building enforcement notice on different people on different days and gives the recipients of the notice at least 28 days to decide whether to appeal (see Appeal to the Secretary of State).

 

Who should be served?

A listed building enforcement notice must be served on each of the following:

  • The owner of the building.

    "Owner" has the same meaning as given in the Town and Country Planning Act 1990 (TCPA 1990), "a person other than a mortgagee not in possession, who, whether in his own right or as a trustee for any other person, is entitled to receive the rack rent of the land or where the land is not let at a rack rent, would be so entitled, if it were so let" (section 91(2), LBA 1990 and section 336, TCPA 1990).

  • The occupier of the building.

  • Any other person with an interest in the building that is materially affected by the listed building enforcement notice.

(Section 38(4), LBA 1990.)

The LPA can obtain information about ownership of a listed building by:

  • Serving a notice on the occupier of the building and any person receiving rent in respect of the building, requesting information about persons having an "interest" in the building (section 89(1), LBA 1990 and section 330, TCPA 1990).

  • Carrying out a Land Registry search.

The notice must either be served on the person or left at or sent by recorded or registered delivery to the recipient's usual or last known place of abode (section 89(1), LBA 1990 and section 329, TCPA 1990).

A listed building enforcement notice cannot be served electronically (section 89(1A), LBA 1990).

Failure to serve a notice properly is a ground of appeal to the Secretary of State (see Eleven grounds of appeal).

Registration of a listed building enforcement notice as a local land charge

A listed building enforcement notice must be registered as a local land charge.

For further information, see Practice note, Searches: Local land charges (www.practicallaw.com/1-107-4834).

 

Effect of a listed building enforcement notice

The listed building enforcement notice must state the date on which it takes effect (see Content of a listed building enforcement notice). The date must be more than 28 days following service of the listed building enforcement notice (section 38(3) and 38(4), LBA 1990).

The date the listed building enforcement notice comes into effect triggers the start of the period for compliance with its terms. An offence occurs if the notice is not complied with by the expiry of the compliance period (see Penalties for non-compliance with a listed building enforcement notice).

 

Appeal to the Secretary of State

Time limit for making an appeal

An appeal against a listed building enforcement notice must be made in writing to the Secretary of State before the notice takes effect (section 39(2), LBA 1990) (see Effect of a listed building enforcement notice).

The Secretary of State has no power to extend the period in which an appeal may be lodged (Howard v Secretary of State for the Environment [1975] QB 235).

If no appeal is made, the listed building enforcement notice will come into effect on the date specified in the notice and must be complied with (see Penalties for non-compliance with a listed building enforcement notice).

Effect of an appeal

If an appeal is made against the listed building enforcement notice, the notice is suspended and does not come into effect until the final determination is made by the Secretary of State or the appeal is withdrawn (section 39(3), LBA 1990). However, the court has powers to order that a listed building enforcement notice takes effect during an appeal (section 65(3A), LBA 1990).

Who can appeal?

An appeal against a listed building enforcement notice can be made by any of the following:

  • A person who has a legal or equitable interest in the building to which the notice relates.

    This includes owners, lessees, official receivers and mortgagees.

  • A relevant occupier.

    A "relevant occupier" is defined in section 39(7) of the LBA 1990 as a person who, on the date the listed building enforcement notice is issued, occupies the building to which the notice relates, by virtue of an oral or written licence, and "continues so to occupy the building when the appeal is brought."

(Section 39(1), LBA 1990.)

Trespassers cannot appeal against a listed building enforcement notice even if they have been served with a copy of the notice.

The person appealing does not need to have been served with a copy of the listed building enforcement notice.

The critical date for establishing that a person has an interest in the land is the date that the appeal is made to the Planning Inspectorate (PINS), not the date the listed building enforcement notice was issued or served (see Legal update, Who has standing to appeal against enforcement notices? (www.practicallaw.com/5-101-4126)).

Eleven grounds of appeal

There are eleven grounds of appeal:

  • Ground (a): the building is not of special architectural or historic interest.
  • Ground (b): those matters alleged in the listed building enforcement notice have not occurred.
  • Ground (c): those matters alleged in the notice (if they have occurred) do not constitute a breach of listed building control.
  • Ground (d): the works to the building were urgently needed in the interests of safety or health or for the preservation of the building, it was not practicable to carry out works of repair or works to afford temporary support or shelter and the works carried out were limited to the minimum measures immediately necessary.
  • Ground (e): listed building consent should be granted for the works or a relevant condition of that consent ought to be discharged or different conditions substituted.
  • Ground (f): copies of the notice were incorrectly served.
  • Ground (g): the requirements of the notice exceed that which is necessary to restore the building to its previous condition.
  • Ground (h): the compliance period stated in the notice is too short.
  • Ground (i): the steps required by the notice would not restore the listed building to its former state.
  • Ground (j): where restoration of the building to its former state is not required, the works required go beyond what is necessary to alleviate the effect of the works done.
  • Ground (k): the steps required by the notice exceed that which is necessary to bring the building into the state in which it would have been had the listed building consent been complied with.

(Section 39(1), LBA 1990.)

An appeal can be made on one or more ground.

PINS has published guidance on making an appeal against a listed building enforcement notice, for further information, see PINS: Making your appeal: How to complete your listed building or conservation area enforcement appeal form (www.practicallaw.com/3-384-6882).

 

Appeals to High Court

Challenge under section 65 of the LBA 1990

There is a right of appeal on a point of law to the High Court against a decision by the Secretary of State (section 65, LBA 1990). An appeal can only proceed with the permission of the court. An application for permission must be made within 28 days following the date of the appeal decision. The High Court can only remit the appeal for re-determination to the Secretary of State.

Judicial review

The validity of a listed building enforcement notice may also be challenged by judicial review. For further information on judicial review, see Practice note, An introduction to judicial review (www.practicallaw.com/1-376-4820).

 

Penalties for non-compliance with a listed building enforcement notice

The owner of a listed building becomes criminally liable if a listed building enforcement notice is not complied with (section 43(1), LBA 1990). For information on the definition of "owner" see Who should be served?.

The owner is liable on summary conviction to a fine not exceeding £20,000 or, on conviction by indictment, to an unlimited fine (section 43(5), LBA 1990).

Following commencement of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) any fine will be unlimited, whether imposed in the magistrates' or Crown Court. However, LASPOA 2012 also gives the Secretary of State power to disapply these changes and set new caps by secondary legislation. To follow the commencement of section 85 of LASPOA 2012, see Legal Aid, Sentencing and Punishment of Offenders Act 2012: tracker (www.practicallaw.com/1-516-6928).

In determining the fine the court is required to have regard to any financial benefit that has accrued or is likely to accrue to the offender.

There are two statutory defences, the owner:

  • Did everything that could be expected to secure compliance with the listed building enforcement notice.

    However, where the owner of the land can comply with the notice without the assistance of others, a defence under section 43(4)(a) of the LBA 1990 cannot arise (R v Beard [1997] PLR 64 Divisional Court).

  • Was not served with a copy of the notice and was not aware of its existence.

(Section 43(4), LBA 1990.)

 

Guidance for LPAs

LPAs should have regard to the following when considering whether or not to issue a listed building enforcement notice:

  • It is essential to act quickly when a breach of listed building control has been spotted and to decide whether serving a notice is the most appropriate action.

  • Draft the terms of the listed building enforcement notice clearly and precisely (see Content of a listed building enforcement notice).

    Specifying the alleged breach and the works required to restore the listed building to its former state can be difficult. Listing particulars usually lack sufficient detail (see Practice note, Special planning controls: listed buildings: The list description (www.practicallaw.com/2-386-7926)). LPAs should review their internal records for useful evidence for example, previous applications for listed building consent or buildings at risk surveys. Photographs taken by LPA officers during routine site visits may also prove useful.

  • Get the proper authorisation for issuing a listed building enforcement notice from the council officer with the appropriate delegated power.

  • If the notice is to be served by post:

    • mark the envelope "Important - this communication affects your property";

    • the notice should be sent by recorded or registered delivery.

 
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