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Managing listed buildings

publication date: Oct 14, 2008
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listed buildingKent based Chartered Surveyors, Caxtons, has learned a thing or two about the management of historic listed buildings in the238years since the company was founded. Which is crucial because the management of listed buildings can bring to light many interesting problems for property managers. 

Started in 1794, The Paragon Crescent on Blackheath, the masterpiece of Regency architect Michael Searles, and Roan Courtyard in Devonshire Road Greenwich, formerly the Roan School for Girls, are two of the listed buildings that Caxtons manage. 

The Paragon numbers amongst a tiny two per cent of Grade I listed buildings in the country, and Roan Courtyard is a Grade II listed building. With much involvement from Conservation, both properties have been sympathetically divided into apartments and now require careful management on a communal basis. 

Tony Martin, a Caxtons’ Property Manager recently experienced a problem at the Paragon that demonstrates what can go wrong when owners don't fully understand the restrictions that prevail when making changes to a listed building.

While improving his central heating, an owner had an external flue installed. “He had not sought permission in connection with the improvements” explains Tony, “reasoning that as it was an internal matter, no permission was necessary. However, the flue changed the external appearance of the building, which was in breach of the restrictions.” 

The local council have now become involved and the owner is in the process of obtaining retrospective consent: the offending flue has now been placed in a less prominent position. 

As a result of this case, Tony provided guidelines for owners on what can and cannot be done in a listed building - especially a rare Grade I listed building. "For example", he says, "at The Paragon, owners must not even change the style of the skirting boards because these have been restored in the style of the original building." 

Caxtons Property Manager with responsibility for Roan Courtyard, Emma Catterall, has recently had a similar problem, this time in connection with an external fire escape. 

“It would be much simpler and cheaper to remove the old fire escape and replace it with a new one, but of course you can't necessarily do that in a listed building said Emma. 

“So I have been working with the Roan Courtyard Management Committee and we are now looking at an acceptable plan on how to repair the fire escape and make it safe, without breaching regulations.” 

James Pilcher, Chairman and Head of Property Management at Caxtons commented: 

“Our Property Managers deal with all sorts of issues and with listed buildings they need to be able to advise our clients on the sensitive areas; and I think Tony’s check list is a very helpful idea”. 

Buildings which are listed or which lie within a conservation area are protected by law. This does not mean that you can never alter or demolish one, but carrying out relevant work without the appropriate consent is a criminal offence. 

Unfortunately many building contractors and even some architects who do not specialise in historic building work are unaware of the alterations which require consent, leaving them and their clients liable to criminal prosecution. 

In brief the following works require consent throughout England, Scotland, Wales and Northern Ireland:
  • All works affecting a scheduled monument or the ground surrounding it require scheduled monument consent:
  • The demolition or alteration of a listed building and historic structures within its grounds requires listed building consent
  • The demolition of an unlisted building in a conservation area requires conservation area consent.
  • Alterations to the exterior of all buildings may also require planning permission and an application may be needed for some works to houses in conservation areas and other buildings affected by an 'Article 4 direction' which otherwise would not require one. 

Although there are slight variations in the legislation protecting historic building and conservation areas throughout the UK, the same principles apply. In Northern Ireland while the legislation itself is much the same, the administration of planning control operates in a very different manner, as described at the end of this article. 

HISTORIC BUILDINGS 
Statutory planning control is affected by three different sources of requirements. Primary legislation is provided in England and Wales by the Town & Country Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990, and in Scotland it is provided by the Town & Country Planning (Scotland) Act 1997 and the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. 

These Acts set out the legal requirements for the control of development and alterations which affect buildings, including those which are listed or in conservation areas, and the framework by which control is maintained. 

Secondly, 'guidance' on Government policy on the application of the Acts of Parliament to specific issues is provided by the relevant Government departments. In England the guidance is Planning Policy Guidance 15: Planning and the Historic Environment (or PPG15 as it is more usually known), which was issued in September 1994 and slightly amended by Environment Circular 14/97. 

Similar guidance for Scotland is given in the Memorandum of Guidance on Listed Buildings and Conservation Areas (1998 edition), and for Wales in two 'circulars'; Welsh Office Circular 61/96, Planning and the Historic Environment: Historic Buildings and Conservation Areas; and the Welsh Office Circular 1/98 Planning and the Historic Environment: Directions by the Secretary of State for Wales. 

Thirdly and finally, at a more local level, developers and historic building owners need to take account of the policy of the local authority. 

These reflect local development requirements and pressures, the character of the area, public opinion, and other local issues of relevance. Policies contained in their development plans (the 'Local Plan' or 'Unitary Development Plan') are introduced following extensive public consultation and carry most weight. Conservation area proposal statements and appraisals, 

'Supplementary Planning Guidance' and other policy documents are also very important, particularly when they have been through a public consultation process. 

PLANNING PERMISSION 
Almost all external alterations and extensions to an existing building require planning permission. However, certain small extensions and other alterations are granted planning permission automatically where they affect a house which is occupied as a 'single family dwelling' ñ that is to say, it is lived in by one family only, not subdivided to form flats. Within a conservation area these 'permitted development' rights are more limited, and exclude for example certain types of cladding, the insertion of dormer windows and satellite dishes, all of which therefore require planning applications. In Scotland changes in a roof covering are also excluded. 

Permitted development rights for a prescribed range of developments may be also be withdrawn by the local authority under an Article 4 direction. This enables the local authority to control certain types of alteration which do so much damage to the character of conservation areas, such as the alteration or removal of doors and windows in particular. 

No separate application is required where an unlisted building lies within a conservation area, but the policies of the local authority should be carefully noted as local authorities are required to pay special attention to 'the desirability of preserving or enhancing the character or appearance of that area' when considering an application for planning permission.

LISTED BUILDING CONSENT No person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised. 

Planning (Listed Buildings and Conservation Areas) Act 1990, Section 7 Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, Section 6 Listed building consent is required for all alterations to listed buildings and their interiors irrespective of their grade or category of listing. 

It is also required for alterations to any object or structure which lies within the grounds or 'curtilage' of a listed building and which was constructed before 1 July 1948. 

This may be taken to include garden walls, sundials, dovecotes and other such objects and structures as well as buildings which are ancillary to the principal building, not separated from it, and were so at the time of listing. It is important to note that altering a listed building without consent is a criminal offence. 

CONSERVATION AREA CONSENT 
The demolition of a building requires conservation area consent if the building is situated within a conservation area. (Prior to the case of Shimuzu v Westminster City Council in 1997 'demolition' was taken to include the demolition of part of a building, such as a chimney stack or a front porch. 

However, on appeal the House of Lords ruled that the removal of part of a building constituted an alteration, not demolition. As a result the demolition of a part of a building in a conservation area no longer requires conservation area consent, no matter how important that part is to the character of the building and of the conservation area.) Unauthorised demolition is a criminal offence. 

THE AUTHORITIES 
The division of responsibility initially seems confusing. In England for example, two Government departments and English Heritage are involved in planning matters in addition to at least two local authority departments, several voluntary bodies and in some areas, county and parish councils. However, almost all applications are made to the local authority's planning department. (The local authority is variously called the district, borough, city or county borough council, and should not be confused with county councils and parish councils.) 

In most cases the planning officer or conservation officer appointed by the council is the only person likely to be dealing with planning and conservation issues. 

Other local authority officers may also become involved to deal with separate matters such as traffic and parking issues, access for the disabled, fire safety, and the building regulations. 

Particularly interesting and contentious applications affecting historic buildings may also involve a conservation officer from Cadw, English Heritage or Historic Scotland. Central government departments are primarily responsible for legislation and applicants are likely to come into direct contact with them only if they appeal against a planning decision. 

Where an application has been refused consent, appeals are made through the local authority within six weeks of the decision, and the appeal is heard by an inspector appointed by the Secretary of State. This can take the form of 'written representations', an 'informal hearing' or, in extreme cases, a full 'public inquiry'. 

Applications for scheduled monument consent are made to the Secretary of State - in practice, either Cadw, the Department of Culture, Media and Sport (England), or Historic Scotland. In England these applications are determined, in effect, by English Heritage. 

ENFORCEMENT 
It is a criminal offence to carry out any works of alteration or extension to a listed building in any manner which would affect its special interest, internally or externally. So too is the demolition of all or part of a listed building or of a building in a conservation area. 

Carrying out such works without permission leaves the owner, developer and building contractor liable to prosecution, fines and even imprisonment. 

The local authority can also require the person responsible to restore the building to its state before work commenced or to carry out works to mitigate the effects of the damage under a 'listed building enforcement notice'. 

Where a building which is listed or in a conservation area is allowed to fall so far into disrepair that it is at risk, local authorities are able to serve an 'urgent works notice'. 

This enables the local authority to carry out any works which are 'urgently necessary' and then recover the cost from the owner. However, urgent works notices can only be served where buildings are unoccupied or on those parts of a building which are unoccupied. 

Further powers are available under a 'repairs notice' where a listed building is not being properly preserved. If no action is taken as a result, the local authority may then seek the authorisation of the Secretary of State for a compulsory purchase order. 



CHECKLIST 
Tony Martin’s checklist of do's and don'ts for long leaseholders occupying listed buildings includes the following: 
1. If you are planning to make any alterations or additions to a property (no matter how insignificant they may seem) make enquiries to the local authority in the first instance. They will give advice on whether or not the works require listed buildings consent. 
2. When planning the works consider whether they will change the appearance of the building or affect its character. If the answer is yes then they are likely to need listed buildings consent. 
3. If in doubt - ask! It is a criminal offence to carry out work without the appropriate consent. 
4. Information about whether the building is listed, what grade, or if it is in a conservation area can be obtained from your local authority or English Heritage. 
The entire guidelines can be downloaded from: www.buildingconservation. com/articles/legislation/ legislation.htm