Building control: listed buildings

Taking cover

7 March 2014

Repairing storm damage is much more complicated for owners of listed buildings, explains Vivien King

Owning or occupying any property leads to concerns and practical considerations when the threat of stormy weather arises. Imagine how much greater is that concern when the property contains a listed building or garden or is a scheduled monument.

Most people recognise the need for conservation and applaud the work of English Heritage and similar bodies in the UK (such as Historic Scotland) as well as conservation officers. Many who take on a listed building, garden or scheduled monument do so with the view that they might better be described as a 'custodian' and readily recognise their duties to preserve their property for future generations.

However, there are difficulties in owning a listed building. What happens, for instance, if it is damaged or destroyed by a storm?

Restriction of works

The Planning (Listed Buildings and Conservation Areas) Act 1990, which applies to England and Wales alone, gives rise to criminal offences if, for instance, an owner does or permits an act that causes or is likely to give rise to damage to their listed building (section 59). It also applies where they demolish, alter or extend it in a manner that affects the building's character as of special architectural or historic interest without consent (section 7) or fail to comply with a condition attaching to any consent granted to conduct works (section 9). The underlying purpose of the Act is to restrict works on listed and other buildings of historic or architectural interest without specific and detailed authorisation – application being made to the relevant local planning authority (section 10). Likewise, in Scotland, application is made to the local authority, which, generally speaking, decides whether listed building consent is required.

First, it must be understood that however dire the emergency it will not negate the need for consent for any works that affect a listed building's character as of special architectural or historic interest

It is easy to appreciate the reasoning behind first obtaining consent for proposed works to a historic property and while it may take some time to obtain the necessary authorisation, particularly if the local authority seeks advice from bodies such as English Heritage, the delay is generally considered 'to go with the territory'. While it will depend on the facts and circumstances, local authorities aim to turn around an application for consent within eight to 13 weeks. However, what happens in an emergency situation caused by factors completely outside the owner's control – for instance stormy weather?

Defence to a criminal offence

First, it must be understood that however dire the emergency it will not negate the need for consent for any works that affect a listed building's character as of special architectural or historic interest. What it might do is give rise to a defence to a criminal offence. For instance, section 9 of the 1990 Act states that, in England and Wales, in any proceedings for an offence it shall be a defence if the following matters are proven:

"(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building

(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter

(c) that the works carried out were limited to the minimum measures immediately necessary

(d) that notice in writing justifying in detail the carrying out of the works was given to the local authority as soon as reasonably practicable."

In practical terms, it would be advisable that in conducting works, the owner record, in photographic terms if possible, the physical state of the building following the storm damage. The more details recorded, the better. It is also necessary to preserve, on site, the physical features including any materials that might otherwise be considered disposable. When a building is listed, each and every part forms part of the listing – destroying or disposing of any part is an offence.

Finally, a word about insurance. As English Heritage comments in relation to owning a home that is a listed building: "A standard home insurance policy might not be adequate." It joins Historic Scotland in advising that the advice of specialist insurance companies should be sought. It is, of course, also worth checking that an insurance policy covers storm damage – many exclude it, but that is another story for another day.

Vivien King is a Consultant to Malcolm Hollis