Q & A 27.2/10
My client has received a listed building enforcement notice relating to the removal of modern carriage lamps from either side of the front door of his listed house. As these lamps were only installed 12 years ago do I have a defence?
The lamps became listed when they were permanently attached to a listed building. However, it is very difficult to understand why a council should be concerned about their removal as it is likely that this would bring about an improvement to the architectural or historic character of the building.
My local authority advertises applications for purely internal works to Grade II listed houses. I think that it was unaware that this is not a statutory requirement until I pointed this out. Now it now says that it will continue to advertise because "there is no prohibition on the local planning authority publicising such applications, and the advertising of the applications is consistent with the council's policy of consultation".
Is such consultation a worthless exercise as how can neighbours have a valid reason for objecting to any internal work?
There is no reason why this local authority should not advertise listed building consent applications for internal works. Taking a wider "heritage" view of the matter, internal alterations to listed buildings should be a matter of concern to the community, even though they may not be in the public domain. What is the practice of other local authorities?
My authority has recently started refusing to accept applications for listed building consent unless accompanied by a "conservation plan". For guidance, applicants are referred to the Heritage Lottery Fund model plan. I have even had a simple application to alter modern doors on the rear elevation of a grade 2 cottage not accepted until I put together some form of words to satisfy this requirement. Is the practice legal, and how do I challenge it without incurring further delays for clients?
The relevant legislation states that applications for listed building consent may include "such other particulars as may be required by the authority". Therefore a requirement for a "conservation plan" is quite legal. Even without such a plan being formally requested it is sensible for an applicant to submit such details in order to support a scheme involving a listed building. However, in the type of case that you cite where insignificant works to a listed building are involved it seems unreasonable to require applicants to concoct a notional "conservation plan" in order to satisfy the letter of local authority policy.
The GPDO at Part 4 Class A gives a permission for temporary buildings required in connection with the operations to be carried out on the land. I imagine that this concession was intended to allow builder's site huts and stores related to large construction projects, but I wonder if such temporary structures would be permitted in the garden of a single house being converted and renovated.
I see nothing in the wording of the Class which sets any minimum size limit to qualifying operations. This was confirmed in an appeal case from Canterbury where an enforcement notice was quashed concerning a corrugated building being used to house plant and machinery in connection with the long term renovation of a listed house. The inspector in this case agreed that the term "operations" could cover works such as the internal refurbishment of a building, even if development as defined in the Town and Country Planning Act 1990 was not involved. It follows that provided that the temporary structures are required for the specific purpose and duration of the conversion operations, they would be permitted development no matter what the size of the scheme.
My authority recently won an appeal against the retention of uPVC windows in a grade II listed public house. One of the main threads in the appellant's case was that the replacement windows were identical to the timber casements previously in place, and there had been no change to the external appearance of the building. It was argued that this met with the guidance contained within paragraph C40 of PPG15 which states that windows in historic buildings should be replaced like for like. The inspector took an opposing view arguing that this guidance only related to replacing windows as per the originals. Do you have any observations on this disparity?
This case was described in Planning 14 December 2001 p18, and the circumstance was that the windows which had been replaced were relatively modern. If we assume that the windows in place at the point of listing were the second generation timber versions and not the originals, then the inspector's assessment should have related to the change that had taken place between these later windows and those that had been subsequently inserted. I base this on the reasonable conclusion that listed building control only extends to protection of changes to the architectural or historic character of buildings from the time they were listed.
It is not entirely clear from the inspector's decision letter what windows he was looking back to. However, whatever the legality of his approach, it is very unlikely that acceptable replicas of either historic set of windows could ever be achieved using uPVC, as borne out by inumerable appeal decisions and underlined in PPG15 advice at paragraph C49.
In 1988 a relative replaced rotten windows in her grade II listed cottage with wood effect UPVC frames. The council have now told her to apply for listed building consent or face enforcement action. Am I right to assume that there is no time limit for enforcement action or does the ten year rule help? Secondly, given that the council failed to notice the fake wood despite surveys, could it be argued that the change does not affect the character of the building and therefore does not require listed building consent?
There is no four or ten year rule relating to works undertaken requiring listed building consent. Therefore a listed building enforcement notice can bite in relation to works carried out at any time after a building was initially listed. As you say it is possible to claim that works to a listed building do not require consent if they do not affect its character as a building or special architectural or historic interest. The problem is that this "character" test is not totally a matter of pure visual assessment and replacement of an element of a listed building with a different material may be considered to harm its integrity. I must say I am surprised that the window replacements have remained undetected in the way you describe, as it is common experience that traditional windows have never really been successfully replicated in plastic.
Although there would be very few instances where this would apply, it seems that any demolition of or works to a listed building carried out before 1 January 1969 may not be enforced against. This is contrary to your reply and indeed to the advice in PPG15 which states that there is no limitation on the period within which a listed building enforcement notice may be issued. Such immunity was granted by virtue of paragraph 23 of part V of schedule 24 of the Town and Country Planning Act 1971 which stated that section 55(1) of the 1971 act did not apply to works carried out before 1/1/1969. This section became sections 7 and 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Interestingly, paragraph 3 of schedule 3 to the Planning (Consequential Provisions) Act 1990 provided that, despite the repeal of the 1971 Act, the provisions of schedule 24 continued to have effect. Therefore, if anybody can prove that unauthorised works to a listed building were carried out before 1/1/1969, listed building enforcement action can have no effect.
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  and various appeal cases described in Development Control Practice at (4.3742).
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.
In support of a listed building enforcement notice requiring windows in a terraced cottage to be painted white to reflect the appearance of its neighbours, an authority quotes paragraph 3.2 of PPG15. This says "controls apply to all works, both external and internal, that would affect a building’s special interest, whether or not the particular feature concerned is specifically mentioned in the list description." Does this appear in any guidance issued before 1983, which is when the building was listed? While the list description details the colour, finish and materials of the roof, chimney stacks, doors, door and window surrounds, it does not do so for the windows. Is it not reasonable to assume that had the window details been significant to the building’s special interest, they would also have been mentioned?
In 1983 relevant guidance was set out in DOE Circular 12/81 and Development Control Policy Note No. 7. I cannot trace a copy of the former, which was cancelled by PPG15’s predecessor Circular 8/87. However, while the words quoted by the authority do not appear in the Note, I think that such old ministerial guidance is now of little relevance. PPG15 advises that list descriptions are principally to aid identification. While they will mention those features that led to the building being listed, such descriptions are not intended to provide a comprehensive or exclusive record of all the features of importance. Absence from the list description of any reference to a feature, whether external or internal, does not therefore indicate that it is not of interest. While the list description might have provided evidence of the window colour at the time of listing, clearly it did not. I do not think that this omission should attract any weight.
Following a Listed Building Enforcement Notice (LBEN), unauthorised PVCu windows that had replaced timber sashes in a listed terraced house were removed and new timber sash windows fitted. Subsequently, listed building consent and permission was granted to convert the house to flats, with the approved drawings clearly showing the new timber framed windows. However, the planning authority is now threatening to prosecute the building's owner for failing to comply with the LBEN as it does not like the type of glazing bars used. It argues that they do not match the building's original glazing bars even though the notice did not specify the type of glazing bars to be used, nor are they mentioned in the list description. Surely, the authority would find it difficult to secure a conviction in this case?
I assume that, in accordance with section 38 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the notice specified the steps required for restoring the building to its former state, rather than compliance with the terms of any listed building consent, which clearly at that time did not exist. However, it seems likely that by virtue of section 44 of the Act, the subsequent granting of such consent has overridden the requirements of the notice. In addition, if the authority failed to make it clear in the steps specified in the notice that the timber framed windows should include a particular style of glazing bar, I think it would be in a weak position were it to attempt to prosecute the owner. Readers’ views are invited.
In considering an application to open up a major new window in the flank wall of a house, loss of privacy and quiet enjoyment of an adjacent property are among the relevant considerations. However, this issue does not arise with an application for listed building consent. So should an application to insert a window in a listed building be made under both sets of legislation? If not, which one takes precedence?
The window would only require planning permission if it would materially affect the external appearance of the house, and so constitute development, and rights to alter the dwellinghouse under Class A, Part 1, Schedule 2 of the General Permitted Development Order (GPDO) 1995 have been removed by a planning condition or Article 4 direction. Only in those circumstances would it be possible to take into account the effect of the window on neighbouring living conditions. But regardless of whether permission is necessary, listed building consent would be required, since it would almost certainly affect the character of a building of special architectural or historic interest. Listed building control is limited to ensuring that the building's special qualities are not harmed.
A Grade II* Listed Inn has been trading under the same name since the 16th Century. The owners now want to change the name, and remove all trace of the previous one by way of signage, etc. There is much local concern, but we are unable to find any need for the owner to submit a planning application, or require listed building consent, purely for the change of name. Is there anything that can be done? DR.
There is nothing that can realistically be accomplished using planning or listed building powers, despite the concerns of many that an important aspect of community history should be protected. In 1999 there was even an attempt to bring in a private members bill to curb the loss of historic pub and inn names. While it may be possible to refuse listed building consent for the removal of name signs which form part of the fabric of a pub and therefore part of its listing, this would not prevent any overall name change. Refusal of consent for any new name signs under listed building or advertisement controls could not, of course, be sustained purely on the basis of objection to the particular words employed. GH.
Is there a statutory requirement for internal alterations to listed buildings to be advertised in a newspaper? MM.
The Planning (Listed Buildings and Conservation Areas) Regulations 1990 specify at Article 5(1) that listed building applications shall be published in a local paper. However exemption is given by Article 5(3) for internal works related to an unstarred Grade II building. GH.
I am dealing with an enforcement case regarding the removal of internal features from a curtilage listed building. I have heard conflicting advice as to whether this is a breach of listed building control or not. Do you have any view on this matter? JT.
I take it that you refer to a structure, maybe not specifically mentioned in the list description, but being pre-1948 and within the curtilage of the principal listed building, is also listed by association and forms part of the building, as per section 1(5)(b) of the Planning (Listed Buildings & Conservation Areas) Act 1990. I can find nothing in the 1990 Act, or in guidance PPG15, to positively suggest that the removal or alteration of interior features within such curtilage buildings is completely exempt from control. Of course, in all instances, such works do not necessarily constitute a breach of listed building control if there is no effect on a building’s special interest. GH.
My client wishes to replace some non-original windows on his grade 2 listed property on a like-for-like basis except that the replacements would be double glazed. However the local authority wants any replacements to reflect the character of two remaining original windows. This means employing a bespoke joiner which would make the project unviable. Given the proposed windows would be very similar to the existing ones so would not harm the building’s character, is the authority reasonable in requiring replacements of original design? JP.
Listed building consent is only required for alterations affecting a listed building’s character as such. From your description of the proposed works it is arguable whether listed building consent is required. Unfortunately, there is no procedure equivalent to the lawful development certificate to ascertain whether listed building consent is required (there seems a case for introducing one as it is not always possible to be definitive about what affects a listed building’s character). My advice is that you submit a listed building consent application for the windows your client wants. Assuming it is refused, I consider you would have a strong case on appeal as the building’s character would not be significantly harmed, energy consumption would be reduced and the alternative is not viable. Furthermore, paragraph 152 of the Historic Environment Planning Practice Guide recommends using secondary glazing for significant windows, suggesting that for non-original windows conventional double glazing would be acceptable. JH.