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Listed Buildings

Should your property be listed then, although this does place limitations on what can be done, the usual principles of planning legislation in the main apply. There is an additional layer to consider in that Listed Building consent will also be required.

Retrospectively gaining consent is also an increasingly engaging area for those looking for sell their properties, as works carried out without consent become the responsibility of the property owner irrespective of when the alterations took place.

This is highlighted in the following case study which was reproduced under permission in The Listed Property Owners’ Club Magazine – Listed Heritage.

Case study

A client has recently come to Foxley Tagg with an interesting case. Over many years he has happily lived in his Grade II listed property and along the way he has made numerous alterations, improvements and repairs but without first obtaining the necessary listed building consents.

The owners have now decided that they wish to sell the property, however they have belatedly realised that the Solicitor acting for any potential purchases will need to be satisfied of the evidence that all the works undertaken are legal so as to complete the transaction.

The rationale behind this is that, although the purchaser would not face any prosecution, they might face enforcement action thus the new owner may be liable for the repairs or reinstatement and therefore potentially ending up with a building different to that they thought they were buying.

This real example has highlighted the important differences between planning permission and listed building consent specifically in relation to the penalties for breach and the consequences for the homeowner and or the perpetrator. Once again highlighting the need to think very carefully before any works are undertaken and to obtain the necessary consents before doing so for which we would advise you to take appropriate professional advice.

Planning Permission

In the first instance it is worth stating here a reminder of the planning rules which come into play when work has been undertaken without the necessary planning permission first being granted.
Interestingly development such as this in itself is not an offence and only becomes an offence when the Local Planning Authority (LPA) instructs for enforcement action and then this is ignored or not complied with. This instruction for enforcement would normally come after an invitation to submit an application to regularise the breach. However if the application fails or the LPA believe it would be expedient to take action then enforcement action would be instigated.

If the LPA is not made aware of a breach and hence does not seek enforcement then time can become the homeowner’s best friend.
The Planning and Compensation Act 1991 introduced time limits within which local LPA’s can take planning enforcement action against breaches of planning control.
The time limits are:

• 4 years for building, engineering or other operations in, on, over or under land, without planning permission. Developments would be immune from enforcement action four years after the operations are substantially completed.

• 4 years for the change of use of a building, or part of a building, to use as a single dwelling house. Enforcement action can no longer be taken once the unauthorised use has continued for four years without any enforcement action being taken.

• 10 years for all other development. The 10 year period runs from the date the breach of planning control was committed.

Once these time limits have passed, in terms of planning permission, the development becomes lawful. However the onus is on the owner to be able to demonstrate beyond reasonable doubt that the work has been undertaken or completed for the minimum time periods as specified.

Purchasers and their solicitors are however notoriously and rightly nervous with regards to any legal anomaly and so we would always recommend additional security for the purchaser through the vendor obtaining a “Lawful Development Certificate”. If granted by the LPA, the certificate means that enforcement action cannot be taken and it legally regularises the breach.

Listed Building Consent

Returning to our example the situation is very different with regard to listed buildings as there are no time limits and it is a criminal offence to undertake work without previously obtaining listed building consent.

Listed Building consent is required for a wide range of works in respect of the interior and exterior of the property for example:

1) Any alterations or additions which affect the special interest of the listed building;
2) Demolition of all, or any part of, the building or any other building within the curtilage of the listed building that was constructed prior to 1st July 1948;
3) Any works of alteration or extension, whether internal or external, to a curtilage building;
4) Any repair that does not replicate the existing fabric exactly; and
5) Extensive repairs (even on a ‘like for like’ basis) or repairs that involve the removal of historic fabric.

However small or insignificant the intended works or repairs are it is essential that you seek specialist advice or indeed contact the Local Planning Authority before commencing the work, in order to ascertain whether listed building consent is required.

Responsible party

The consequences do not stay with the perpetrator of the unauthorised works as authorities may consider serving a listed building enforcement notice against the current owner even where that person did not carry out the unauthorised works.

In listed building cases there are often a number of potential defendants who may have carried out the works and it can sometimes be difficult to ascertain precisely who carried them out and whether such works were permitted by the owner or occupier.

The wording of the legislation enables prosecutions to be brought against either those who carried out the works, or those who permitted the works to be carried out, or both.
Potential defendants include contractors (builders and installers) and agents (Surveyors and architects), as well as owners and occupiers. Authorities need to decide whether sufficient evidence exists in relation to some or all of these individuals to bring a prosecution.

During the decision to prosecute the LPA will also need to consider whether it is in the public interest to prosecute some or all of these individuals.

Difficulties often arise where properties have exchanged hands several times in a short space of time as current owners may allege that the unauthorised works were carried out by previous owners. Previous owners may, similarly, allege that the current owner, or another previous owner, carried out the works. In these situations, in the absence of other evidence, it can often be extremely difficult to prove who the correct defendant is.

However while listed building enforcement notices can be served on current owners in relation to works carried out by previous owners, prosecutions can only be brought against those who actually caused or permitted the works.


Another point of difference between planning and building controls is in scale, Listed building consent may be needed for what would usually be regarded as de minimis works under the planning regime, which, being too minor to constitute development, do not require planning permission.

This is not the case with listed building consent as it is the nature of the work completed and whether this is likely to affect a property’s character as a building of special architectural or historical interest and not the scale.

A safety net for any potential purchaser is that any surveyor who understands historic buildings will identify the alteration(s) and alert the purchaser, normally through their solicitors, to ask whether consent was obtained and subsequently check the local authority records to confirm.

And finally

Lawful Development Certificates which can be sought for planning deficiencies are not available and relevant where listed building controls may be breached.
A retrospective listed building consent application would be the only way to regularise matters, however even with such an application the LPA, given severe breaches, may also undertake criminal proceedings.

You may also be interested in a recent article, also published in Listed Heritage, concerning Listed buildings re domestication.

Should you wish Foxley Tagg to look at your own Listed Building issue then please contact us on 01242 222107 or email with;

• Your contact details.
• An outline of the issues involved.
• Site address.

and we will come back to you with an initial planning appraisal so that you may decide whether to utilise our professional services.