Residential Property & Conveyancing

Publish date

15 June 2021

How can listed building consents complicate a sale or purchase?

What is Listed Building Consent?

Listed Building Consent is a consent issued under the Planning (Listed Buildings and Conservation Areas) Act 1990 for any works carried out to a Grade I or Grade II listed building which affect its character as a building of special architectural or historic interest. Residential and commercial buildings can be listed. In fact, any structure can be listed, from coal mining buildings to swimming lidos.

You can check whether a property is listed via the “Search the List” page on Historic England’s website. A listing will include a brief description of a property, and sometimes details of any alterations previously undertaken.

What is the difference between Grade I and Grade ll?

Grade II covers buildings which are deemed of special interest warranting every effort to preserve them. This covers over 90% of listed buildings. Another 5.8% are Grade II*, which is for buildings with more than a local interest. A smaller 2.5% are Grade I, which are of exceptional interest nationally and historically. As you would expect, Grade l listed buildings are subject to more restrictions.

Why is listing a problem?

When a building or a structure is listed there are additional hoops an owner must jump through before they can make changes; even carrying out repairs may require consent. This requirement is sometimes overlooked by owners, causing problems when properties are sold, often years later.

Why are buildings listed?

The purpose of Listed Building Consent is to protect and retain the character of buildings of historical interest.

The local planning authority must consult Historic England and the National Amenity Societies on certain Listed Building Consent applications.

If you intend to purchase a listed building and are not sure whether any alterations you plan to make will affect the character of the property, it is always best to speak to the local authority’s Listed Building Officer (or Conservation Officer) to check whether consent will be required.  Local authorities will consult on the works before an application is made.

What happens if works are carried out to a listed building without consent?

It is a criminal offence to carry out works affecting the character of a listed building without first obtaining Listed Building Consent. It is also an offence not to comply with the conditions attached to any Listed Building Consent granted.  These conditions often relate to the types of materials which should be used or the location of any new features being added and must be checked by the local authority once the works are complete in order that they can be formally discharged.

If a local authority discovers that unauthorised alterations have been carried out to a listed building, its first course of action is likely to be the service of a Listed Building Enforcement Notice.  These notices will often require works to be reversed in order to restore the historical features which have been removed.  Sometimes, of course, that is not possible and the notice may require that the works carried out without consent are remedied to bring the property into the state it would have been in if consent had been sought before the works commenced.

If a Listed Building Enforcement Notice is not complied with within the timescales stated on the notice, then the local authority may consider criminal proceedings.  The maximum penalty for this offence if it is dealt with in the Magistrates’ Court is six months in prison or an unlimited fine (set by the court on a case by case basis). If it is dealt with in the Crown Court (more serious offences), the maximum term of imprisonment is extended to two years, with the same alternative penalty of an unlimited fine. There are some limited defences available to anyone who finds themselves in this unfortunate position.

What if the works were carried out by a previous owner?

It is worth noting that the existing owner of a listed building is liable for any unauthorised works carried out to the property, even if those works were carried out prior to their purchase. Not knowing that a property was listed before works were undertaken is not a valid defence to criminal proceedings.

Possible solutions for past breaches

It is now possible to obtain indemnity insurance for lack of Listed Building Consent (where it should have been obtained) and/or lack of evidence that any conditions attached to a Listed Building Consent have been discharged by the local authority.

Some lenders are now willing to accept these indemnity policies. However, if you are purchasing a listed building which has been subject to unauthorised works, it is important to note that these policies only cover the costs of any enforcement action taken by the local authority – they do not provide any protection in terms of a criminal prosecution.

Things to consider before purchasing a listed building

The prospect of buying a listed building is often an attractive one, as these properties are often full of charm and character.  However, it can also be difficult to obtain consent for the changes you would like, even down to the colour and type of the paint used on the window frames.  A listed property can also present a myriad of problems if any previous works carried out prior to a purchase have been completed without consent.

If you are planning to purchase a listed building, it is imperative that your solicitor checks that any alterations mentioned in your survey and the local authority search result were either carried out prior to the date the property was listed or have been authorised by way of a Listed Building Consent.  Your solicitor should also check whether any conditions attached to the Listed Building Consent have been discharged by the local planning authority.

If you have any questions about this topic, please get in touch

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