Criminal Offences: Listed Buildings and Other Heritage Assets
The law contains a number of criminal offences aimed at protecting historic buildings and sites and at ensuring the appropriate consents are sought when necessary.
Without their existence, and more importantly without their enforcement, all the laws, policy and guidance setting out the sophisticated approach to conservation of our heritage assets are largely pointless, as wrongdoers can circumvent the system with impunity. In short, if the police, CPS, local authorities and Historic England do not enforce the law there is no effective heritage protection in England.
A prosecution may be ineffective in restoring a building or site to its previous state, but it will deter future harm by the wrongdoers and others and ensure those who comply with the law are not disadvantaged.
Listed building offences
It is an offence to carry out works that require listed building consent without such a consent being obtained (1). Not all works require listed building consent, only demolition or works or alteration or extension that affect the character of the building as a building of special architectural or historic interest.(2).
The offence is committed by the person who carried out the works (possibly a builder) and by anyone who caused them to be carried out (someone instructing a builder).
It is not a defence to say that the fact that the building was listed was not known. Bearing in mind the possible uncertainties regarding attached and curtilage structures, the National Heritage List for England and the local planning authority should be consulted if there is any doubt.
It is a defence to proceedings to show that works to the building were urgently necessary in the interests of health and safety or for the preservation of the building; they were the minimum necessary and temporary works of repairs, support or shelter were not practicable; and, notice in writing justifying the works was given to the local authority as soon as reasonably practicable (1).
Given harm to health and safety can often be prevented simply by preventing access to the site, it should be very rare that significant works can be justified on these grounds. Local authority staff can be consulted even in urgent cases.
The maximum penalty is two years' imprisonment or an unlimited fine. In determining the fine a judge must have regard to any financial benefit which has accrued or appears likely to accrue to the wrongdoer so as to deny them any benefits (3).
It is also an offence to fail to adhere to a condition on a listed building consent. The same penalties and defence apply (4).
Quite separately it is an offence for anyone who would otherwise be permitted to do damage to a listed building (e.g. the owner) to do anything which causes or is likely to result in damage to a listed building with the intention of causing damage (5). Damage to a listed building by an unauthorised person other than the owner or occupier would be criminal damage under the Criminal Damage Act 1971.
As well as prosecuting any breaches of the law protecting listed buildings the local planning authority may also issue a listed building enforcement notice with the purpose of restoration or alleviating the effects of the unlawful works (6). Failure to comply with a valid listed building enforcement notice is itself an offence with potentially an unlimited fine that must take into account any financial gain (7). In this case the offence is committed by the owner for the time being of the listed building and not the person who carried out the unconsented works.
So owners must appeal or comply with listed building enforcement notices even if the works were carried out by a previous owner or they risk committing a criminal offence.
Works that required listed building consent may be given consent after they have occurred, including through the process of an appeal against a listed building enforcement notice. The fact that the works are given consent after the event does not alter the fact that an offence may have been committed and a prosecution may still be brought. The works may have been very harmful and regrettable but the consent process may have to recognise the difficulties with restoration.
Conservation area offences
Demolition of an unlisted building in a conservation area without planning permission is a criminal offence (8). The defences and penalties are the same as for listed buildings. As with listed buildings, an enforcement notice can be served to rectify any works done without planning permission or work done in breach of a condition on such a consent. Breach of the enforcement notice is itself a further offence committed by the then owner (8).
General planning offences
Development that is harmful to the historic environment that does not have, but needed, planning permission may be the subject of a planning enforcement notice (9). Failure to adhere to a valid enforcement notice may be a criminal offence (10) committed by the current owner, but there is no offence committed by failing to apply for planning permission in the first place.
Both offences have the potential for unlimited fines.
Scheduled monument offences
1. works resulting in the demolition or destruction of or any damage to a scheduled monument;
2. works for the purpose of removing or repairing a scheduled monument or any part of it or of making any alterations or additions thereto; and
3. any flooding or tipping operations on land in, on or under which there is scheduled monument.
Scheduled monument consent may have been deemed given under a class consent order (14).
There are express defences, including (in relation to works under paragraph 1 and 2 above) that the person did not know and had no reason to believe that the monument was in the area affected by the works or that it was a scheduled monument (c.f. listed buildings) (15). The location of a scheduled monument can always be checked on the National Heritage List for England.
There is also a defence relating to urgent works for health and safety (16).
Breach of a condition on a scheduled monument consent is also an offence (17).
Either offences may be subject to an unlimited fine.
A person who without lawful excuse damages or destroys a scheduled monument, knowing that it is protected (18) and intending to damage or destroy it, commits a criminal offence (18). This is regardless of whether they are the owner or carried out the works with the owners authority. The penalty may be an unlimited fine or two years imprisonment or both.
Metal detecting offences
It is an offence to use a metal detector on a scheduled monument or in an area of archaeological importance without a licence from Historic England (19). This is regardless of whether the user does any damage to the monument or area. It is also an offence to remove an object of archaeological or historic interest from a scheduled monument or area of archaeological importance that has been discovered using a metal detector (19).
Certain historical items that may be lawfully found with or without a metal detector are classed as treasure (20). It is a criminal offence to fail to notify the coroner within 14 days of finding an object which may be treasure (21).
Theft, arson and criminal damage may all be committed to a historic building or site. These 'everyday' offences may be the only or most appropriate means of bringing someone to justice for damaging England's heritage. The most important consideration in prosecuting and sentencing such crimes is the impact on our heritage which may be irreversible and cannot be equated to a financial cost. This can be brought to the courts attention through a heritage impact statement.
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