By Claire Tofts

Solicitor

There are around 500,000 buildings of many different types affected by listed building entries in England, so it is not particularly unusual for homes or commercial properties to be listed buildings. The impact of a listing is more far reaching than many people appreciate, and it is essential to have the right advice.

What is a listed building?

A listed building is ‘a building which is for the time being included in a list compiled by or approved by the Secretary of State’. A building may qualify for listing under architectural interest or historic interest and also considering the building’s exterior impact to a particular setting. Age and rarity, aesthetic merits, selectivity and national interest are also relevant factors.

In general, all buildings built before 1700 which survive in anything like their original condition are likely to be listed and most buildings built between 1700 and 1850. Particularly careful selection is required for buildings from the period after 1945. Buildings less than 30 years old are not normally considered to be of special architectural or historic interest because they have yet to stand the test of time.

There are three categories of listed building:

• Grade I – buildings of exceptional national importance.

 

• Grade II* – particularly important buildings of more than special interest and have some national significance.

 

• Grade II – buildings of special interest, warranting every effort to preserve them, but tend to be of more local importance. 91.7% of listed buildings are Grade II.

A property can be listed as a listed building at any time, without formal public consultation and without any statutory right of appeal.

What is affected by the listing?

It is a common misconception that only the features mentioned in the listing description are listed. The whole of the listed building is affected, including the interior and exterior, and includes:

• any structure or erection and any part of a building;

 

• an extension to a building if it is fixed to the listed building and ancillary and subordinate to it;

 

• items fixed to the building. This can include chimney pieces, wall panelling and painted ceilings, and even mirrors, paintings or sculptures can be fixtures; and

 

• items or structures which are not fixed to the building but have been within the curtilage of the listed building since before 1 July 1948. This can include boundary walls, gate lodges, stables and sundials.

However, a listing can specifically state that certain objects or structures fixed to the building or within the curtilage of the building, or certain features or parts of a building, are not of special architectural or historic interest.

Consequences of listing

Historic England say that listed buildings are to be enjoyed and used, like any other building. Listed buildings can be altered, extended and sometimes even demolished as long as this is within government planning guidance.

A listed building will require listed building consent for works where these would affect the listed building’s character as a building of special architectural or historic interest. This is a matter of individual judgment and there may be disagreements between the local planning authority and the listed building owner about what that means in practice.

If in doubt, it is possible to make an application to the local planning authority for a certificate of lawfulness of proposed works of alteration or extension (not demolition), which can confirm that the proposed works do not require listed building consent.

Planning permission may be required in addition to listed building consent and a listed building will benefit from some, but not all, permitted development rights.

Unauthorised works

If unauthorised works are carried out (or planned to be carried out) to a listed building then the local planning authority has the power to:

• Prosecute – it is a criminal offence to demolish or carry out works that affect the listed building’s character as a building of special architectural or historic interest without listed building consent. The maximum penalty is an unlimited fine or up to two years’ imprisonment, or both, for the person who actually carried out the work or the person who allowed the work to be carried out. This can therefore include owners, occupiers or contractors.

 

• Take listed building enforcement action – the local planning authority can issue an enforcement notice requiring remediation of unauthorised works. Importantly there is no immunity period for listed building enforcement action, so enforcement action can be taken against subsequent owners of the property at any time. If enforcement action is taken and not complied with then this can lead to criminal liability for the owner at the time of the works or a subsequent owner.

 

• Apply to the court for an injunction – this step is taken to restrain an anticipated breach of listed building control, for example to prevent works or demolition.

Given the serious and ongoing nature of these sanctions, is important to ask the right questions on a purchase or lease of a listed building, to establish the works that have been carried out and whether they have been authorised.

We can help you navigate this process and understand the impact of being the owner or occupier of a listed building.