Preventing, Reversing and Prosecuting: Unlawful Works to Listed Buildings and Other Heritage Assets
Damage to a heritage asset is often irreversible. Even if there is evidence of what was there before so it can confidently be restored, the patina of age, the craftsmanship, the archaeological interest and the plain sense of connection with the past through the age of the materials will be lost.
Preventing unlawful works is therefore a very important part of heritage protection. It is why carrying out works without obtaining the necessary listed building consent, or scheduled monument consent is a criminal offence. Planning permission may also be required: failing to obtain planning permission for the demolition of an unlisted building in a conservation area is an offence, while other breaches of planning control can lead to criminal penalties in some cases. Simply reminding people of the need for the consent and the criminal sanctions for failing to apply (possibly unlimited fines and imprisonment) should act as a significant deterrent.
Sometimes there can be doubt as to whether consent is required. For example, it may be arguable as to whether partial demolition is needed without consent in the interests of health and safety. Historic England has published a general guide to the need to obtain permission and consent, which can be found here [HPG>the need for permission and consent]; more bespoke advice can also be obtained through the local planning authority [link to definition]. An alternative way to seek clarity is to apply to the court for a declaration, following which it will be plain as to what works are and are not lawful.
Where works have already taken place or are continuing a listed building enforcement notice or an enforcement notice in relation to planning permission for relevant demolition may be served to reverse the works or mitigate their effect.
Although a failure to obtain planning permission (other than planning permission for demolition of unlisted buildings in conservation areas) is not an offence, works that require but do not have planning permission can be stopped by ‘stop notices’. Failure to adhere to a stop notice or an enforcement notice is itself a criminal offence. An application to the court for an injunction is also possible for example to prevent unauthorised development. Failure to comply with an injunction is likely to constitute a contempt of court which can be punishable by a fine or imprisonment.
Local planning authorities may obtain information in relation to enforcement by serving a planning contravention notice; this is also applicable to suspected breaches of listed building control.
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.
Whilst a prosecution may not result in the restoration of a building or site to its previous state, it will deter future harm by the wrongdoers and others and ensure those who comply with the law are not disadvantaged.
If someone is about to carry out unlawful works to a listed building or is in the process of doing so then a simple reminder that what they are about to do is a criminal offence with a possible unlimited fine and two years in prison should act as a deterrent.
The owner may believe that the works do not affect the character of the building or are justified on health and safety grounds. If the local planning authority disputes this but agrees that there is some scope for doubt then they can apply for an injunction to prevent the works taking place. Breach of an injunction would then be unarguable and can be enforced through the Courts.
If works have already been carried out to a listed building without consent or in breach of a condition attached to a consent, the local planning authority may serve a listed building enforcement notice.
Listed building enforcement notices enable an authority to require remediation of unauthorised works to bring a building either back to its former state or, where that is not practical or desirable, to alleviate the effect of the unauthorised works.
A notice can be issued at any time – even many years after the unlawful works were carried out. It can be served on the current owner of a building irrespective of whether they, a previous owner or any other party was responsible for the works.
The notice must specify (ref. 1):
- the alleged contravention – details must be set out clearly;
2. the action required by the authority – it may require restoration or steps to mitigate the damage caused by the works;
3. time by which the action must be taken;
4. date on which the notice comes into effect (being not less than 28 days after the date of service).
The notice can also require steps to be taken to secure compliance with a condition attached to listed building consent.
Any remedial works specified in a listed building enforcement notice must be carried out within the period stated in the notice. Compliance is the responsibility of the current owner of the property (and subsequent owners for so long as steps required by the notice are still to be complied with). Non-compliance may result in prosecution (ref. 2) and/or in the authority carrying out the work itself and claiming the cost from the owner (ref. 3).
A notice may be appealed before the date it is to take effect (ref. 4). Whilst the appeal is ongoing the effect of the notice is suspended. The grounds of appeal include:
- that the building is not of special architectural or historic interest;
2. that the alleged unauthorised works set out in the notice have not occurred or that they do not constitute a contravention of the requirement for consent;
3. that the works to the building were urgently necessary in the interest of health and safety or for the preservation of the building;
4. that listed building consent ought to be granted for the works;
5. that the requirements of the notice exceed what is necessary to restore the building to its former condition or what is necessary to alleviate the effect of the works.
The listed building enforcement notice will provide details of the appeal procedure which may also be found on the website of the Planning Inspectorate. It is possible to challenge the decision of an enforcement appeal by an application to the High Court within certain time limits and upon certain grounds, however, the Court generally expects claimants to have exhausted all other appeal processes before commencing a judicial or statutory review.
It is an offence to carry out works that require listed building consent without such a consent being obtained (ref. 5). Not all works require listed building consent, only demolition, or works of alteration or extension that affect the character of the building as a building of special architectural or historic interest.(ref. 6).
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 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 (ref. 5).
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 (ref. 7).
It is also an offence to fail to adhere to a condition on a listed building consent. The same penalties and defence apply (ref. 8).
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 (ref. 9). 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 (ref. 10). 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 (ref. 11). 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.
Demolition of an unlisted building in a conservation area requires planning permission. An outline of the circumstances in which planning permission is needed for demolition (or other works) in a conservation area can be found here [link – HPG – the need for consent]
Prevention and enforcement
Unlawful demolition may be deterred and/or the effects reversed in the same way as for unlawful works to a listed building, including through the use of injunctions and enforcement notices.
Planning enforcement powers may assist in relation to other unpermitted development within a conservation area or its setting.
In most cases, demolition of an unlisted building in a conservation area without planning permission is a criminal offence. 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.
Works to a scheduled monument are subject to a stand-alone consent process. An outline of the consents needed to carry out works to or near a scheduled monument may be found here.
Prevention and Enforcement
Unlawful works may be deterred by alerting people to the criminal nature of the activity and/or through the use of an injunction.
Where unlawful works have already been carried out, there is no specific power to serve an enforcement notice requiring restorative or mitigation works.
However, if the unauthorised works to the scheduled monument are also a breach of planning control then the local planning authority may serve a planning enforcement notice in respect of that breach which may also be of benefit to the monument.
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 (ref. 13).
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) (ref. 14). 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 (ref. 15).
Breach of a condition on a scheduled monument consent is also an offence (ref. 16).
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 (ref. 17) and intending to damage or destroy it, commits a criminal offence (ref. 17). 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.
It is also an offence to use a metal detector on a scheduled monument or in an area of archaeological importance without a licence from Historic England (ref. 18). 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 (ref. 18).
General planning control
Planning permission is generally required for development in England. An overview of the circumstances in which planning permission is needed may be found here [link – HPG – need for consent].
Prevention and Enforcement
The adverse impact of new and unpermitted development on heritage assets is easier to reverse in practice than demolition or destruction of something of heritage value, though the legal powers of the local planning authorities for dealing with both are similar.
A failure to apply for planning permission is not a criminal offence. However, an enforcement notice can be served to reverse the works (ref. 19) and stop notices can be served to prevent any anticipated or continuing works pending the enforcement process (ref. 20). A breach of condition notice can also be served if development is carried out in breach of a condition attached to a grant of planning permission.
The content of, effect of, and appeal process for enforcement notices are similar to those for a listed building enforcement notice (ref. 21). One key difference is that an enforcement notice has to be served within four or ten years of the date on which the operations were substantially complete (depending on the type of development) (ref. 22).
Failure to adhere to a valid enforcement notice may be a criminal offence (ref. 23) 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.
It is also an offence to fail to comply with a breach of condition notice. Other offences
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. Under the Sentencing Council Theft Offences Definitive Guidelines theft offences that involve a heritage asset can now result in increased sentences.
Certain historical items that may be lawfully found with or without a metal detector are classed as treasure (ref. 26). It is a criminal offence to fail to notify the coroner within 14 days of finding an object which may be treasure (ref. 27).
(26) s1 Treasure Act 1996
(27) s8 Treasure Act 1996