Listed buildings, conservation areas and archaeology Q & A DCP Section 4.37

This section is not intended to provide a definitive commentary on the law relating to listed buildings and conservation area buildings, but instead attempts to set out the main strands of legislation and its interpretation that are most likely to be of use to practicing planners undertaking development control work. There is probably more specialist material written on this aspect of planning law than any other and reference should be made to the publications and articles listed at (4.379) for further commentary.

Q & A    4.37/10

My client has been served a section 78 notice under the Building Act 1984.  The building to be demolished lies in a conservation area. Does the requirement to demolish this dangerous building supersede the need to first gain conservation area consent?

The Direction made by the secretary of state relating to exemption from the need to seek conservation area consent to demolish, does not list a building subject to a dangerous structure notice. PPG15 at B.16 confirms that conservation area permission would be required first.

I am confused by the use of the word "curtilage" with reference to listed building control. Does it have the same meaning as with relation to permitted development rights?

As the term "curtilage" is employed in differing legislative codes there is strictly no relationship, but as the word is undefined in either the General Permitted Development Order 1995 (GPDO) or the Planning (Listed Buildings and Conservation Areas) Act 1990 rulings have tended to fall back on its commonly understood meaning. However, PPG15 on Planning and the Historic Environment at paras.3.34 & 3.35 does contain  advice on the subject. This serves to underline the fact that when ascertaining whether a building is listed by reason of being within the "curtilage" of a listed building there may be complex matters of present and past historic association to be considered which will not apply to an assessment for GPDO purposes. The guidance lists the following factors:

-    the historic independence of the building;

-    the physical layout of the principal building and other buildings;

-    the ownership of the buildings now and at the time of the listing;

-    whether the structure forms part of the land;

-    the use and function of the buildings, and whether a building is ancillary or subordinate to the principal building.

I am undertaking pre-application advice for the owners of a listed Baptist church. The building is in relatively poor state and is no longer considered suitable for the needs of the church. I have been asked to clarify the statutory approvals required for demolition recognising the provisions of the Ecclesiastical Exemption (Listed Buildings  and Conservation Areas) Order 1994. What are the implications of this?

Buildings held in trust for a church in membership of the Baptist Union are included under the 1994 Order which provides for wide ranging exemption from listed building control where a church is in use for ecclesiastical purposes. However in cases of redundancy full secular listed building control applies in relation to demolition, alterations and extensions, although there are special exceptions for the Church of England.

My church meets in a grade II listed building and we needed to carry out some works requiring listed building consent. The denomination has an ecclesiastical exemption, but the internal procedures take 6 months. In addition the fee is several hundred pounds, which is about 20 percent of the cost of the works. We therefore applied for, and received, consent from the local authority – free, and within 2 months. The works are now complete but are they unauthorised?

The Planning (Listed Buildings and Conservation Areas) Act 1990 states at section 60 that the need for listed building consent to be obtained does not apply to an ecclesiastical building in use.  This exemption is restrained by the Ecclesiastical Exemption Order 1994 which provides that it only applies to specific denominations that operate a system of internal control over alterations to listed churches. I think that if the ecclesiastical exemption is voluntarily surrendered in favour of permission under the 1990 Act there is not much doubt that the works are properly authorized.  Certainly, there is no way that a local authority having granted listed building consent for works, could then serve a listed building enforcement notice requiring those same works to be removed.

Response

I awaited a barrage of comments from legal readers but none came. Your interpretation of the secular position has clear logic to it, but surely if the church concerned is the Church of England then would there not remain the need to obtain consent through the faculty procedure?

Surely there is not a choice between the Planning (Listed Buildings and Conservation Areas) Act 1990 and The Ecclesiastical Exemption Order of 1994. If a proposal is for the alteration of an exempt ecclesiastical building then the only relevant legislation is the 1994 Order.  You are correct that the local authority cannot now enforce against the works, but nevertheless the relevant denomination authority could take enforcement action under their own powers. This being the case the "consent" issued by the authority is an irrelevance.

Cases have shown that a Faculty will only be granted for works which affect the character of a listed building if there are exceptional circumstances showing a necessity for such change. In addition to the factors that an LPA looks for, the jurisdiction decides whether the change is necessary for the pastoral well being of the parish. That factor would not be considered, at least not directly by a LPA. Even with the listed building consent obtained in the case referred to, works to a Church of England building would still be unlawful without a Faculty and the church has powers to deal with offending works.

It is a statutory obligation on local planning authorities that the setting of a listed building shall be given "special regard" when making decisions on planning applications. In addition local authorities have to advertise such applications. But how far away from a listed building does a new development have to be for these requirements not to be necessary?

There is no rule of thumb to be applied and this is very much a matter of planning judgment based on the individual circumstances. Indeed the statutory requirement to advertise provides that the assessment shall be "in the opinion of the authority".  As advised in PPG15 para. 2.17 a proposed high or bulky building might affect the setting of a listed building some distance away, or alter views of a historic skyline. In the latter respect the preservation of long distance views of dominant listed buildings, such as cathedrals or stately homes, as seen from important vantage points is normally considered to be a component part of the setting of that building to be safeguarded.

Development, which also includes works to a listed building, normally requires a separate planning application and application for listed building consent. Does the same process apply to demolition work in a conservation area in that separate application would be needed for conservation area consent, even if the demolition is part and parcel of the development the subject of the planning application?

As the requirements to seek planning permission and conservation area consent are contained in different Acts of Parliament, applications cannot be formally combined.  In practice, of course, the two forms of application are very closely related and will be considered together. PPG15 at para. 4.25 confirms that procedures to apply for conservation area consent are essentially the same as for listed building consent applications.

I have been told that after the 1997 House of Lords judgment in the Shimizu case different rules apply to the consideration of proposals to remove the whole of a listed building, as opposed to partial demolition. However, I am not aware of any changes having been made to government advice on this matter. Can you elucidate?

The Shimizu judgment was concerned solely with a valuation question and for this purpose it was necessary to decide whether particular works were to be denoted  a "demolition" or an "alteration". The Lords decided that the demolition of part of a listed building was an "alteration". After this judgment the government saw fit to make immediate regularizing amendments to the guidance in PPG15. However, these merely moved reference to the demolition of a "significant part" of a listed building to the section of PPG15 related to alterations and extensions, while maintaining reference to the policy advice which had existed before. The matter was reviewed in a recent court judgment Sullivan v Warwick District Council [2003]. Here challenge was made to a permission for the demolition of a wing of a listed hotel in Leamington Spa on the basis the local authority, advised by English Heritage, had not considered the demolition works to be significant and that therefore the marketing test advised in PPG15 had not been applied. It was determined by the court that the wrong advice had been acted on but that this had not made a difference to the ultimate decision. However, the judgment did state that the question of whether a "significant" part of a listed building is to be demolished was a matter of fact, and it was up to the decision maker in each individual case what weight to give to factors of proportion or quality dependent on the features and character of the building under consideration.
It seems clear that this is a topic which any future revision of PPG15 should amplify in order to minimize future interpretation problems.

I have had "The Three Graces" case cited to me in the context of a listed building appeal, but am unable to find a reference to it either as a court judgment or an appeal determination. Can you help?

This matter arose from the 1989 removal of the statue of The Three Graces by Canova from the temple at Woburn Abbey. The Secretary of State at the time was asked for his opinion as to whether the statue was a fixture and therefore comprised part of the listing of the Abbey. It was initially considered that the statue was a fixture but that listed building enforcement was not appropriate. However, after the threat of judicial review further advice was taken and the stance was then taken that even though the statue was located in a setting designed for it, its degree of annexation to the fabric of the Abbey was not great. Accordingly it was considered that consent for removal was not necessary. As this decision was conveyed in correspondence there was no formal case as such, but the letter is a matter of public record. It is worth noting that the topic of the removal of fixtures and fitting at listed buildings has moved on since the "The Three Graces" episode and reference should be made to Kennedy v Secretary of State for Wales [1996] and various appeal cases described in Development Control Practice at (4.3742).

My client obtained permission in 1979 for a package of three works in the extensive land surrounding his home. Two of the works were completed within five years, but the third, a new access was not. The house was listed grade II in 1987. The access is now required and although the council accept that the original planning permission is still valid it has warned my client that he needs listed building consent as the house and its grounds are now listed. This seems bad advice as the planning consent was part implemented and therefore valid at the time of listing and cannot be negated by it. There are also doubts as to whether the proposed entrance gates and most of the access are within the curtilage of the listed building.

The Planning (Listed Buildings and Conservation Areas) Act 1990 indicates that consent is required for works affecting a listed building. In your client’s case the building is listed and if proposed works affect its character in the way the Act specifies there would seem little escape from the requirement now to obtain consent. There is nothing in the Act which states that an extant planning permission overrides the need for listed building consent.

As to your other point, without more information I cannot comment on the question of whether the works proposed are within the curtilage of the listed building or not. However, listed building consent is not required unless the gates or access physically abut something that is listed or involve the demolition or alteration of listed structures. It is not enough for the works simply to affect their setting.

Planning permission was granted for the demolition of an old house in poor condition and the erection of a replacement dwelling. A third party was keen to see the existing house retained, but the council considered it of little merit. Some four months after the issue of the decision notice and some days before the commencement of works on site the owners were informed that the building had been listed. It seems that there is no appeal against such a listing and the house cannot now be demolished without listed building consent. The owners are thinking of applying for de-listing or alternatively applying for listed building consent to demolish and appeal against any refusal on the basis that the house is incapable of economic restoration. My concern is that the planning permission has been invalidated without compensation and my clients have incurred considerable professional fees in the four months between the date permission was granted and the date of the listing. What is your advice?

As you say, there is no statutory right of appeal against listing, but the Secretary of State will consider informal requests for de-listing on the basis that a mistake has been made or the building concerned is no longer worthy.  However, I understand that such a request will not be entertained if the building in question is subject to an application or appeal.
You are also right to assume that the act of listing carries no right of compensation even if consequential losses can be demonstrated, and I see no way round the fact that the building cannot now be demolished without breach of listed building control. It is difficult to see that a direct application to the Secretary of State would have much chance of success at this stage, and the forum of an appeal if the local authority refuse to allow demolition would seem to be the best way of getting the issues fully aired.

Response

Regarding the person who obtained planning permission for a replacement dwelling only to find the building was then listed and the cost of preparing the scheme wasted, had they thought to apply for a Certificate of Immunity from Listing at the outset of the scheme, this could have been prevented.

A standard condition of listed building consent (LBC) requires that new works and works of making good to the retained fabric to be finished to match the "adjacent work". Does this phrase refer to existing works on the subject building or would it include those on an adjacent building?

As far as I am aware the phrase is not defined in case law or appeal decisions. It is not used in PPG15, which includes only limited guidance on conditions in Annex B, or in its predecessor circular 8/87, which set out a range of model conditions. However, for the purposes of applying the provisions of the GPDO 1995, the courts have held that "‘adjacent’ means close to or nearby or lying by: its significance or application in point of distance depends on the circumstances in which the word is used". While this may be evident in most cases, the guidance at Annex C of PPG15 refers to the need for alterations and repairs to listed buildings to respect the existing rather than the adjacent fabric.

Although not subject to the advice of circular 11/95, conditions attached to listed building consents must satisfy the same six tests as those imposed on planning permissions. Thus they should be necessary, relevant, enforceable, precise and reasonable in all other respects. The underlying objective of the standard condition might very well be reasonable. However, it could be argued that the inclusion of the phrase "adjacent work" renders it imprecise as it does not make sufficiently clear whether this relates specifically to the existing building or its immediate neighbour. That could result in difficulties of interpretation and enforcement. In the event of a dispute, therefore, there is a good chance that the condition would be struck down.

Conservation area consent (CAC) is required for demolition of buildings within conservation areas subject to the criteria in S74 of the Listed Buildings and Conservation Areas Act 1990.  However, this section also states that consent is not required where the building is required to be demolished by virtue of a condition of planning permission.  If a planning application is submitted for development on the site which requires the demolition to take place, is CAC also required?

A planning permission does not grant conservation area consent for any necessary demolition works, and unless these are explicitly required by a planning condition, it will be necessary to apply separately for CAC. This approach was confirmed in a decision from 1988, when the Secretary of State held that the implication contained in conditions of a permission and a related sec.106 agreement that demolition of conservation area buildings was contemplated did not apply; thus CAC was required. It is normal practice for such an application to be made at the same time as that for planning permission and for the two to be considered together.

Opinion is divided at my authority on whether the part or whole demolition of a wall within a conservation area would require permission where permitted development rights under class 7, Part 2, Schedule 1 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 have been removed and the demolition is not associated with any other development.  What is your view?

Class 7 grants permission for minor operations including the alteration of a wall, subject to certain limitations. Following the loophole created by the judgement in Shimizu (UK) v Westminster City Council [1997], Scottish Executive Circular 1/2001 and the Town and Country Planning (Demolition which is not Development) (Scotland) Direction 2001 re-introduced the requirement that the demolition of the whole or any part of a wall shall be treated as development for the purposes of planning control. Thus if rights under class 7 are withdrawn, such as by an Article 4 Direction, permission is required for the partial demolition of a wall within a conservation area, since this might otherwise be an ‘alteration’ and therefore permitted development. But the withdrawal of such rights does not change the need for permission for complete demolition, as this is not granted by the Order.

My authority is dealing with concurrent applications for conservation area consent and permission to demolish and redevelop a commercial property. Since the building has architectural merit and is a key part of the conservation area, the authority is minded to refuse consent for its demolition. It has no objection to the proposed development in itself and it is our understanding that permission is not required to demolish the building. However, in view of our objections to its loss, should planning permission also be refused?

Refusing permission on the grounds of the loss of the building would be unwise given that under the Town and Country Planning (Demolition - Description of Buildings) Direction 1995, which is reproduced as Appendix A of Circular 10/95, its demolition is not to be taken as development. Permission for a proposal involving demolition does not constitute conservation area consent, as confirmed by a ministerial decision from London in 1988. If the authority considers that the proposed development is acceptable but the demolition is not, it should grant permission and refuse conservation area consent. However, since there is an obvious risk that the permission could be misconstrued, it should include an informative explaining that the application for conservation area consent has been refused.

Class A.1(g), Part 1, Schedule 2 of the General Permitted Development Order 1995 says that permission is required to enlarge a dwelling where "it would consist of or include the erection of a building within the curtilage of a listed building". Article 1 of the Order states that a "building" includes "any structure or erection" and with certain exceptions "includes any part of a building, as defined in this article". This implies that extensions may be classed as buildings and so any extension to a listed building needs planning permission as well as listed building consent. The latest version of Planning: A Guide for Householders explains that permission is required for extensions to listed buildings, whereas previous editions did not. So do all such extensions now require permission?.

As noted in DCP 4.3421, for the reasons you give it may be fairly inferred that all extensions to listed dwellings have no Class A permitted development rights and will require express permission. However, since nearly all works carried out to a listed house would require separate listed building consent in any event, this is largely of academic interest. The inclusion of the phrase "within the curtilage" creates some difficulty, since this would normally refer to free-standing buildings. But as Class A only applies to works to a dwelling, there can be little doubt that it cannot refer to garden buildings as these are dealt with separately in Class E. In my view, the ODPM’s latest guidance is correct.

I want to remove a chimney, including above roof level, on a conservation area house which is not listed or subject to an Article 4(2) direction. My research indicates that neither planning permission or conservation area consent is required, but my council is suggesting that the removal is not permitted development and quote Part 1 Class C of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995.

I have a tall chimney stack on a two-storey terraced house which is not listed or in a conservation area. The stack is visible from the public highway and is to be reduced by about one metre leaving the top about 2 metres above ridge height. Would this be classed as development and require planning permission?

Response

In the case of the removal of a chimney from a house, which is not listed or in a conservation area, planning permission is not required by reason of Part 31permitted development rights. Provided notification requirements are complied with, this deemed permission overrides whatever interpretation may be given to Part 1 Class C. Where a house is in a conservation area, consent is not required provided the demolition involved does not comprise a substantial part of the whole building, as it is hardly likely to be. It is of note that the Heritage White Paper published earlier this year promised to reinstate control of demolition in conservation areas to pre-1997 levels. This proposal is part of the planned merger of the present conservation area consent regime with the mainstream planning system.

It is now well established that bat surveys should be carried out before planning permission is granted where there is a reasonable likelihood of them being found. Would the same principle apply for an application for conservation area consent (CAC)?

The issues relating to planning permission and bat colonies were considered in Forum on 19 October and 9 November 2007. A respondent drew attention to the Conservation (Natural Habitats, &c.) Regulations 1994, s3(4) which states  "Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions". Looking at these Regulations and the Listed Buildings and Conservation Areas Act 1990, I can find nothing that does not apply this provision to CAC applications. This conclusion would seem to be endorsed by an appeal relating to a CAC application in Surrey last year (DCS No. 100-050-963) where the inspector took this issue to be a material consideration, though in the circumstances of that case he considered the evidence pointed to the site not being a bat roost.

We have been advised that it is difficult to take action, either by serving injunctions or through prosecution, where unauthorised works have taken place on listed buildings and the planning authority does not have a record of the part of the building affected - usually the interior - before the works took place. The legal view is that we need to prove some detriment in order for such action to be successful. Our view is that it is the undertaking of the unauthorised works themselves that is the offence rather than the degree of detriment, which is impossible to prove without having a record of the building in its former state. How do other authorities approach this? CH.

Curiously, listed building consent is required for "works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest". However, a planning authority may prosecute under section 59 of the Listed Buildings and Conservation Areas Act 1990 for "any act which causes or is likely to result in damage to the building".

In that light, it would seem possible to prosecute against works that do not harm a listed building, such as removing modern internal partitions. On the other hand, such action would not be in the public interest. Furthermore, for any court to be able to determine an appropriate sentence, it would seem desirable to demonstrate how the building had been harmed. The production of evidence of the former state of the building, be it from photographs, old plans, a statement from a former occupier or other sources, would seem appropriate. JH.

A canal, which forms part of a conservation area, runs beneath a multi-storey car park. It has been suggested that the conservation boundary ought to be drawn upwards through the building. Indeed, when seen on plan it appears as though the car park forms part of the conservation area. In these circumstances would conservation area consent (CAC) be required to demolish the car park? RP.

Yes, strictly the car park is located within the conservation area. For most car parks a CAC application would be unlikely to be controversial! JH

A council has suggested that a prior notification under the General Permitted Development Order 1995 (as amended) may be required to demolish a non-residential building because it adjoins a listed building. Is this correct? RA.

No. This is only required it the building is a dwelling or adjoins a dwelling. You should, however, consider whether you might be proposing works that could require listed building consent, such as making good an exposed gable. JH.

A listed building curtilage and a dwellinghouse curtilage can be different. For example a listed barn may not have had a historic curtilage, but if it is converted to a dwelling a domestic curtilage may be created. This new curtilage could be classed as the curtilage of the dwellinghouse but not necessarily the curtilage of the listed building. The same applies if a houseowner extends their curtilage beyond the house’s historic curtilage. In such circumstances the house owner would seem to have permitted development rights for pools, buildings etc under Class E of the General Permitted Development Order 1995 in the newly created curtilage. What is your advice? MP.

The case, Sumption and another v London Borough of Greenwich (2008) where a certificate of lawful development for a wall round the newly extended curtilage of a listed house was quashed, would indicate that when deciding if buildings, etc within the curtilage of a listed dwelling are permitted development one considers the "current" curtilage, not the "historic" one. JH.

Do the different grades of a listed building have any relevance in determining a listed building application to alter or extend it or a planning application impacting on its setting? MS.

Planning Policy Guidance Note 15 states "the importance of the building, its intrinsic architectural and historic interest and rarity, in both national and local terms" is an issue generally relevant to the consideration of all listed building consent applications. It does, however go on to say, "The grading of a building in the statutory lists is clearly a material consideration for the exercise of listed building control. Grades I and II* identify the outstanding architectural or historic interest of a small proportion (about 6%) of all listed buildings. These buildings are of particularly great importance to the nation's built heritage: their significance will generally be beyond dispute. But it should be emphasised that the statutory controls apply equally to all listed buildings, irrespective of grade; and since Grade II includes about 94% of all listed buildings, representing a major element in the historic quality of our towns, villages and countryside, failure to give careful scrutiny to proposals for their alteration or demolition could lead to widespread damage to the historic environment." Thus, in dealing with listed building applications, the grade of the building would seem to have some weight. There is no similar advice relating to planning applications affecting settings, but I would suggest it would seem logical on the same principle to give a slightly higher weight to protecting the setting of a grade I or II* building than a grade II one. JH. 

Is permission required to demolish the chimneys of a house in a conservation area? VF.

Conservation consent would not, of course, be required for partial demolition applying the principles of Shimizu (UK) Ltd v Westminster City Council 1997 which indicated only a building’s substantial or total demolition would require this. As the definition of "building" in article 1 of the General Permitted Development Order 1995 does not include part of a building in class A of part 31 of the Order, it could be argued that any partial demolition of a house requires planning permission (see Journal of Planning and Environmental Law 1994 p777 and 1995 p370 and DC Forum for 6 June 2008). Depending on the nature of the works and the position of the chimney, chimney demolition might fall within class G of part 1 of the schedule to the October 2008 amendment to the General Permitted Development Order. I regret I cannot give a more definitive answer. As chimneys can be quite an important feature contributing to the character of a conservation area, it is unfortunate that the law is not clearer. JH.

My house is listed and I want to install central heating. Would I require listed building consent for this? MC.

Generally listed building consent is not considered to be required for central heating. Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 states listed building consent is required for alterations or extensions to listed buildings which would affect their character as buildings of special architectural or historic interest. Thus, if your work is likely to result in damage to important features such as paneling or cornices, consent would be required. If you are in any way unsure whether you need consent, seek advice from your council as not only could enforcement action be taken against you, but under section 9 of the Act you could be prosecuted for unauthorised works. JH. 

Response

What the Planning (Listed Buildings and Conservation Areas) Act 1990 does not tell us is who should decide whether alterations affect the character of the listed building.  This is generally taken to be a matter for the planning authority and most people would be pleased to be told, if there was no affect, that consent was not needed.  However, in many circumstances alterations to listed buildings can be zero-rated for VAT and the way to prove works amount to ‘alteration’ is to obtain consent.  Consequently, in many cases owners have made applications even though not required. EB.

A two-storey building is proposed within the curtilage of an early nineteenth century grade 2 * listed coach-house and 10 metres from it. Part of the new building would be joined to an original wall and gates which connect to the coach-house. Would listed building consent be required? DW.

This is an assessment that has to be made as a matter of fact and degree, but it would be helpful to spell out what to take into account. Under s1 of the Planning (Listed Buildings and Conservation Areas) Act 1990, a building’s listing extends to any object or structure fixed to it and pre-1948 objects or structures within the curtilage which form part of the land. Listed building consent is required for any alteration or extension to the building in any manner which would affect its character as one of special architectural or historic interest.

The building is to be joined onto an original wall which, so it constitutes an alteration or extension to the listed building. It is therefore necessary to decide whether it affects its character. Issues that would need to be considered in assessing this are the building’s size, the degree of affixation, whether any significant features would be damaged or lost, the style of the new building and how reversible the works are. If there is doubt on this issue, it would be best for both the planning authority, to avoid possible criticism from third parties, and the building owner, to avoid a possible listed building enforcement notice, to err on the side of caution. JH.

Have there been any cases where listed building consent to repair or rebuild a severely damaged listed building was granted retrospectively and subsequently declared invalid or a nullity?  This would be the case where, had listed building consent been sought before the work was implemented, it would have been refused because it was detrimental to the building’s fabric and the proper course would have been prosecuting the owner for damaging the building and issuing an enforcement notice. HS.

There are two situations where this theoretically might occur. Firstly, where authorities are minded to grant certain types of listed building applications, particularly ones involving demolition of principal buildings, they have to be referred to Secretary of State under s13 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and circular 01/2001 and can be called in. I have not been able to find an example of a retrospective application which has been refused following call-in. Secondly, listed building consent could be granted, either by a planning authority or on appeal, and be successfully challenged by judicial review. Judicial review, however, can only be on legal grounds. Thus, if a situation has occurred where a retrospective listed building consent approval has been quashed by judicial review, it would not have been on the basis of the case’s merits. JH.

Response

Should you not have pointed out that if the works required listed building consent, then carrying them out without consent constitutes a criminal act. You cannot grant "retrospective" consent to wipe out the criminal act. Any application seeking consent after the event should be described as an application to retain or regularise the work; for an authority to do otherwise is misleading to the applicant and to anyone who is notified of the application. Should consent be granted in these circumstances it will not be "retrospective" but only make the situation "lawful" from the date of consent. The option of prosecution for works before that date remains, although unlikely if the situation can be successfully remedied. VG.

Section 8(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides for retrospective listed building consent, but the Act indicates this is only effective from the date of consent so would not preclude prosecution for unauthorised works. JH. 

We are dealing with a listed building application to dismantle a building, with a subsequent planning application for housing on the site. The relocation site already has planning permission for the reconstruction of the building. It is in third party ownership. We are struggling to identify a mechanism to require the reconstruction of the building and have ruled out a planning agreement as the relocation is not dependant on the housing development. There are also concerns that an agreement between the developer and relocation site owner will not suffice as this could be varied or terminated and would not be within authority control. Any help would be appreciated. SE.

I would consider a s106 agreement would be possible as, if the listed building is not satisfactorily relocated there would presumably be strong planning objections to the residential development going ahead. Circular 05/05, however, favours conditions to agreements whenever possible. A condition could be imposed on the listed building consent requiring that demolition should not start until evidence of a contract has been submitted and accepted (a similar mechanism is frequently used to avoid a vacant site being left when conservation area consent is granted for demolition). Alternatively, a "Grampian" type condition preventing the residential development starting or reaching a certain stage until the building has been rebuilt could be used. Another point to bear in mind is that when the building is rebuilt, it would only be protected as a listed building if it is "re-listed".

In 1976 listed building consent was granted to convert a large house into apartments and the work implemented. Subsequently two internal partitions constructed as part of the 1976 consent were removed, though no consent was obtained for this. My client now wishes to reinstate the partitions and has applied for consent, but the council is unhappy with this proposal. Surely the reinstatement of the partitions as originally approved cannot be resisted by the planning authority. Do you agree? JM.

The situation seems analogous to renewing a planning permission. The existence of the previous permission is a material planning consideration, but the authority is not bound by it, particularly if circumstances have changed in the meantime, such as more information about the significance of the building’s features coming to light. JH.

My client obtained planning permission and listed building consent for a restaurant extension.  The Council placed a condition on the planning permission (only) requiring approval of a new fume extract system, including a new flue.  This was installed and the condition was discharged.  The council now argues that since the flue was not shown on the listed building application, a separate listed building consent application is required.  Apparently its conservation officer was not consulted on the submission and he is not happy with the flue, so changes will be needed.  I argue that by using a planning condition, the council incorporated the new flue into the approved scheme under both regimes.  It could also have placed a condition regarding the flue on the listed building consent, but did not.  In any case, the impact on the listed building was part of the consideration of the planning condition.   Is a listed building consent application required? Cases like this underline the advantages that a unified consent regime could bring.  LG.

If the flue affects the character of the listed building as such, then it would require listed building consent. Having said that, the council appears to have failed to consider listed building issues when approving the extract details. This seems possibly to be maladministration and a complaint that your client has incurred additional expense as a result with further reference to the ombudsman, if necessary, would seem reasonable. Regarding your comments about a unified consent regime, whilst it would have some advantages, in some cases it could put applicants at a disadvantage as a listed building consent may require more detailed plans and they might not wish to prepare these until they know a scheme is acceptable in planning terms. An interesting appeal in Glasgow where the authority failed to consider the extract duct implications of a restaurant enlargement is DCS No: 100-064-670.  JH.

Planning Policy Statement 5 (Policy HE11) supports the principle of 'enabling development'. English Heritage guidance, "Enabling Development and the conservation of significant places", refers to examples where the enabling development is within the curtilage or near to the asset in question, although paragraph 3.2.5 mentions circumstances where it is 'distant' from the asset. In the latter case and where a financial payment (secured through a S.106 agreement) to fund a heritage asset is the main justification for granting permission contrary to the development plan, are you aware of cases where the lack of a 'geographical link' has been held to be contrary to the tests in circular 05/05. Otherwise, what is your view on the acceptability of such a scenario given the circular 05/05 & community infrastructure levy requirements - in particular the need for the S.106 payment to be ‘directly related to the development’? PW.

This would ultimately be a matter for the courts to decide, of course. Normally enabling development is proposed when both the heritage asset and the enabling development site are in the same ownership. In any event, even if the two sites are not in the same ownership, provided there is a planning obligation to require the necessary works to the listed building, the enabling development provides a nexus between the two schemes. Thus, as long as the level of profit from the scheme is not excessive, distance between the two sites should not, I would have thought, be a problem in terms of there being a direct relationship between the two developments. I am not aware of any appeals or other cases where this issue has been considered, however. JH.

In two recent appeals relating to listed building consent for replacement windows the inspectors have considered their effect on the character and appearance of the listed building and on the surrounding conservation area (DCS Nos: 100-070-166 and 100-069-664). I have never considered the impact on a conservation area as a consideration when solely dealing with a listed building consent application as I have always considered that such an application looks just at the proposal’s impact on the character and appearance of the listed structure. I would welcome your comments. DR.

S16 of the Planning (Listed Buildings and Conservation Areas) Act 1990 stipulates that in considering listed building consent applications authorities "shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses". As a surrounding conservation area would be part of a building’s setting, it would seem that, when dealing with a listed building consent application, a council or an inspector can take impact on this into account. Having said that, I cannot think of a circumstance where external works to a listed building which would be detrimental to it would not also be detrimental to a surrounding conservation area. Thus, in practice, whether this is taken into account or not is unlikely to result in a different decision. JH.


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