Solicitor Kayleigh Chapman, in our leading Planning & Environmental law team, explains whether Listed Building Enforcement Notices can be appealed.
Yes, an appeal can be made against a LB Enforcement Notice to the Secretary of State by an owner or occupier. An appeal must be made by the date specified in the notice and there is no fee applicable.
Section 39(1) lists eleven grounds of appeal against a LB Enforcement Notice. An appeal can be made on one or more of the following grounds:
a) that the building is not of special architectural or historic interest;
There is a heavy burden of proof on appellants to succeed on this ground. By appealing on this ground the appellant is essentially requesting that the Secretary of State removes the property from the statutory list. An appellant cannot argue that because of the works the building is not of special architectural or historic interest. The relevant time is the time before the works were carried out.
b) that the matters alleged to constitute a contravention of section 9(1) or (2) have not occurred;
The ground is advanced on the basis that the works alleged to have been carried out have not actually occurred.
c) that those matters (if they occurred) do not constitute such a contravention
This ground might, for example, be advanced where works were carried out prior to the building being listed – the Inspector would expect evidence to be forthcoming to support any argument.
d) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building, 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, and that the works carried out were limited to the minimum measures immediately necessary;
Recently, appellants had sought to rely on this ground as part of their appeal in respect of a building in Birmingham (APP/P4605/F/19/3219961; APP/P4605/F/19/32202474). The alleged works were the installation of roller shutters and security grid panels.
The Inspector dismissed the appeal on this ground. The Inspector confirmed that the emphasis of this ground were the words “essential”, “urgent” and “to preserve the listed building”.
The appellants had advanced the argument that works to a listed building were necessary for security purposes. The Inspector did not consider that this argument could succeed under ground ‘d’ as the appellant had failed to show that the health or safety of any user of the building was at risk if the security measures were not carried out. The appellants had not demonstrated that the works were required as a matter of urgency and further they were not the minimum measures required to overcome health and safety issues.
e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted;
In considering this ground an Inspector would have due regard to the test for determining whether listed building consent should be granted – the effect of the works on the special architectural and historical character of the listed building and its setting.
f) that copies of the notice were not served as required by section 38(4);
Our previous blog article looked at the service requirements. If these were not met then an appeal can be advanced on this ground.
Unfortunately, the Inspector has the power to disregard the fact that a person has not been properly served with a LB Enforcement Notice provided neither the appellant nor that person “has been substantially prejudiced by the failure to serve him”.
g) except in relation to such a requirement as is mentioned in section 38(2)(b) or (c), that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out;
An appeal under this ground ‘g’ is unlikely to result in the quashing of the LB Enforcement Notice. Instead the Inspector, if an appeal is successful on this ground, would likely vary the requirements.
h) that the period specified in the notice as the period within which any step required by the notice is to be taken falls short of what should reasonably be allowed;
This ground will not result in the LB Enforcement Notice being quashed. If successful the time for compliance would instead be varied.
One example of this ground succeeding is a 2001 decision relating to The Goods Shed and Offices, Railway Yard (APP/M6825/F/01/1056425). Here a LB Enforcement Notice was served alleging among other things “the replacement of missing natural roof tiles on the roof of the North elevation with manufactured tiles”. The LB Enforcement Notice required the manufactured tiles to be removed and for them to be replaced with natural slate tiles which exactly matched the originals. The period for compliance was three months.
The appellant company here argued that the cost of carrying out the works required by the notice were in the region of £250,000.00 and at that time the company was focused on repairing and maintaining a railway track and signalling. The appellants argued that a period of nine months would be reasonable. The Inspector was critical of the appellants for letting the listed building succumb to a poor state of repair but nonetheless varied the requirements of the notice to allow the works to be carried out within nine months, rather than three.
i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose;
j) that steps required to be taken by virtue of section 38(2)(b) exceed what is necessary to alleviate the effect of the works executed to the building;
k) that steps required to be taken by virtue of section 38(2)(c) exceed what is necessary to bring the building to the state in which it would have been if the terms and conditions of the listed building consent had been complied with.
This ground will not succeed if listed building consent has not previously been granted for certain works.
Professional advice should be sought if a LB Enforcement Notice is served. A specialist lawyer or heritage consultant should be able to advise you on whether you have any grounds for appealing the notice, the likelihood of success and can prepare the necessary documents for an appeal.
The benefit of appealing a LB Enforcement Notice is that Section 39(3) operates to suspend the requirements of the notice whilst an appeal is in process. During this time the local planning authority cannot prosecute for non-compliance with the requirements of the notice.
If an appeal is unsuccessful and the requirements of the LB Enforcement Notice are not complied within the specified compliance period then an offence will have been committed. An offence is similarly committed if an appeal is not submitted and the requirements are not complied with.
If prosecuted and no defence is available then the Court (either Magistrates or Crown) can impose an unlimited fine. Any financial benefit accrued due to the non-compliance will be taken into account in determining the level of fine.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.