Understanding Listed Buildings and Conservation Areas in England
If you are selling or looking to purchase a listed building in England, the associated issues will form a major part of the buyer’s due diligence during the conveyancing process.
This guide explains how the listed buildings consent (LBC) regime works in practice, when consent is needed, how applications are decided, and what happens when unauthorised works were carried out and LBC was not obtained.
What is a listed building?
A listed building is a building that appears on the National Heritage List for England (NHLE) because it is considered to be of special architectural or historic interest. The list is maintained by Historic England and is the official register of nationally protected buildings and sites.
A listed building comprises of each of the following:
- The building itself (internal and external).
- Any object or structure fixed to the building.
- Any object or structure within the curtilage of the building that forms part of the land and has done so since before 1 July 1948.
What is listed building consent?
Listed building consent is a specific permission, separate from planning permission, required for certain works to listed buildings in England. The consent is necessary for any alterations, extensions or demolitions that might affect the character of the listed building as one of special architectural or historic interest. However, whether the works affect the building’s character as a building of special interest is a matter of individual judgement. Therefore there is scope for differences in opinion between the owner of the building and the local planning authority (LPA).
Permitted development
Where a building is listed, it only benefits from limited permitted development rights. Permitted development rights are statutory rights to carry out certain works to a property without obtaining planning permission, provided those works meet the criteria set out in the Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. There are a number of classes of permitted development that do not apply to listed buildings, for example installation of CCTV or an erection of a building within the curtilage. Therefore, it is never safe to assume that any works, however small, are exempt from planning permission and it is always safer to check and obtain express planning permission from the LPA.
Enforcement
Carrying out unauthorised works to a listed building is a criminal offence and penalties can include an unlimited fine or, in serious cases, imprisonment. The liability can attach itself to either the person who carried out the work, or the person that allowed the work to be carried out. There are defences available, but it is not a defence to simply state that you were unaware that the building was listed.
Crucially, the planning problems run with the property and not the person that carried out the works. This means that a buyer of a listed building can inherit liability for works done by previous owners/occupiers, regardless of whether they carried out the work themselves. Therefore, problems often arise during the sale of listed buildings when work has been completed without the proper consents. However, a subsequent owner of a property cannot be guilty of a criminal offence in respect of unauthorised works carried out before they purchased the property.
Where a breach of the listing building consenting regime has occurred, the LPA can also issue a listed building enforcement notice. This requires the building to be restored to its previous state or otherwise alleviate the effect of the unauthorised works or secure compliance with conditions. As there is no statutory limit for enforcement action on unauthorised works to listed buildings, this can be served many years after the works were carried out and regardless of whether the current owner of the property was the owner when the work was carried out.
Conservation areas
A conservation area is an area of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance. These will be designated by an LPA and reviewed occasionally. The effect of this can be new areas being designated or boundaries of existing areas being expanded or decreased by the LPA. Every local authority in England has designated at least one conservation area and there are now more than 10,000 in England.
What are the consequences of being in a conservation area?
Previously, there was a separate consent called “conservation area consent”, which was required for the demolition of an unlisted building within a conservation area. However, this has been abolished and from 1 October 2013, just planning permission is required for “relevant demolition”.
A crucial effect of being within a conservation area, is that more works will need planning permission than would be the case outside of a conservation area. As with listed buildings, the permitted development rights are much more limited, meaning planning permission will be required for works such as:
- Carrying out roof alterations to a dwelling house.
- Install, alter or replace microwave antenna or its support apparatus.
As well as these restrictions, an LPA can choose to remove further permitted development rights with something called an Article 4 Direction. This can be implemented by the LPA if it is necessary to protect local amenity or the well-being of the area. This can include works as small as replacing windows or doors. It is important to note however, that this does not ban the works it covers, instead it removes the automatic permission and requires a planning application to be assessed against the conversation policies.
In contrast to unauthorised works to listed buildings, the LPA only currently has 10 years to take enforcement action in respect of works carried out without obtaining any required planning permission.
Trees in conservation areas
Anyone person that is proposing to cut down or carry out works to a tree within a conservation area (that is not already protected by a tree preservation order), is required to give the LPA six weeks’ notice. This notice does not have to be given to the LPA for the:
- Cutting down, topping, lopping, or uprooting of a tree whose diameter does not exceed 75 millimetres
- Cutting down or uprooting of a tree whose diameter does not exceed 100 millimetres where carried out for the sole purpose of improving the growth of other trees.
Within the six weeks the council will decide whether the trees in question should be made subject to a Tree Preservation Order.
Enforcement for unauthorised tree works
Carrying out works to trees in a conservation area or to trees protected by a Tree Preservation Order without consent is a criminal offence and can lead to severe legal consequences.
The enforcement action that can be taken against the party in breach may include fines or prosecution. The fines imposed can be unlimited. The fine is determined by any financial benefit that has or is likely to have accrued as a result of the breach. This is a strict liability offence, meaning liability can be incurred without the offender knowing that the tree is protected by a Tree Preservation Order. Also, any third party who has acted in a way that assists in the breach of a Tree Preservation Order, may also commit an offence.
Enforcement action by the LPA must be taken within three years of the offence occurring and they must bring enforcement action within six months of obtaining sufficient evidence of the breach.
Subsequently, if a tree in a conservation area or with the protection of a Tree Preservation Order has been removed, uprooted or destroyed without consent, the landowner is under a duty to plant another tree of an appropriate size and species as soon as is reasonably possible. If this duty is not complied with, the LPA can serve a tree replacement notice on the owner. This notice must be served within four years of the date of the alleged failure to comply with the duty.
Buying or Altering a Listed Property? Speak to Us First
If you are buying, selling or planning works to a listed property, early legal advice can help you avoid delays, extra costs and potential enforcement issues. Our property team can advise on listed building consent, conservation area restrictions and risks identified during a transaction.
Contact our solicitors in Bridport, Dorchester, Weymouth or Portland, or call 01305 771 000.
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