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Preventing and Reversing 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 a failure to apply for listed building, planning permission for relevant demolition in a conservation area and scheduled monument consents when they are needed is a criminal offence. 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. This can be cleared up by seeking an injunction from the court, following which it will be plain as to what works are and are not lawful. Breach of an injunction can be itself a criminal offence.

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 the relevant demolition) 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 is itself a criminal offence. An application to the court for an injunction is also possible for example to prevent unauthorised development.

Works that have taken place without consent or planning permission can be reversed by an enforcement notice.

Listed buildings

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. Breach of an injunction would then be unarguable and can be made a criminal offence.

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.

In exceptional circumstances, the Secretary of State may serve a listed building enforcement notice after consultation with the planning authority and Historic England.

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 (1):

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 (2) and/or in the authority carrying out the work itself and claiming the cost from the owner (3).

A notice may be appealed before the date it is to take effect (4). Whilst the appeal is ongoing the effect of the notice is suspended. The grounds of appeal include:

1. 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.

Planning enforcement powers may assist in relation to unpermitted development in the curtilage or setting of a listed building that are not physically works to the listed building itself.

Conservation areas

Demolition of an unlisted building in a conservation area requires planning permission. Demolition without consent is a criminal offence.

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.

Scheduled monuments

Works to a scheduled monument without consent may be a criminal offence.

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.

General planning control

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 are similar.

A failure to apply for planning permission is not a criminal offence, and so there is less of a deterrent.

However, an enforcement notice can be served to reverse the works (5) and stop notices can be served to prevent any anticipated or continuing works pending the enforcement process (6).

The content of, effect of and appeal process for enforcement notices are similar to those for a listed building enforcement notice (7). One key difference is that an enforcement notice has to be served within four years of the date on which the operations were substantially complete (8).

It is a criminal offence to breach a stop notice during its currency and to fail to respond to an enforcement notice. If the owner fails to respond to an enforcement notice, the local authority may in addition to taking a prosecution enter the land, carry out the necessary works and recover the reasonable costs of taking that action.

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