Q & A 27.1/10
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 . 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.
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.
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.