Partner Karen Jones, in our Planning & Environmental law team, looks at prosecutions in relation to listed buildings.
Pursuant to Section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“1990 Act”) an offence is committed if a listed building is demolished or works to alter or extend listed building in “any manner which would affect its character as a building of special architectural or historic interest” are carried out without being authorised. An offence is also committed under Section 9 if the works carried out to the listed building are not carried out in accordance with conditions attached to listed building consent.
In addition, if a local planning authority serves a Listed Building Enforcement Notice (“LB Enforcement Notice”) and the requirements of that notice are not complied with within the time specified in the notice then in accordance with Section 43 of the 1990 Act an offence will have been committed.
Prosecution does not automatically follow the event. A local planning authority can exercise its discretion over whether or not to prosecute under the above sections. It will follow the guidance used in prosecutions by the CPS to make its decision. It will also have its own enforcement policy which should be compliant with the Code for Crown Prosecutors and which it should follow.
There are limited defences available to offences under Section 9 or 43 of the 1990 Act. These are considered below.
Section 9
Section 9(3) provides the defences to that offence as follows:
a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of 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; and
d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable
The defence is strictly applied and the burden of proof is on the Defendant(s) to any prosecution to establish that all of the elements of the defence are present. That is that the works were “urgently necessary” for reasons of safety, health or preservation; that temporary support or shelter would not have been practicable; that the works carried out were the minimum measures immediately necessary and that written justification is given to the local planning authority as soon as reasonably practicable.
If notice is given to the local planning authority prior to the works being carried out that may bring into question how urgent the works actually were.
The offence is a “triable either way” offence, this means that depending on the seriousness of the offence it can be heard by either the Magistrates Court or the Crown Court.
If a defence is unavailable or is unsuccessful and a person is convicted of an offence under Section 9 of the 1990 Act at the Magistrates Court then that person can face a term of imprisonment not exceeding six months or an unlimited fine, or both. If convicted in the Crown Court then the Court can impose an unlimited fine, a term of imprisonment not exceeding two years, or both.
Section 9(5) of the 1990 Act specifically provides the Court with the power to consider the financial gain (if any) that a Defendant has benefitted from by carrying out the works and/or demolition. Financial gain might be a gain in the market value of a building as a result of the works.
Section 43
There are two statutory defences available under Section 43(4) of the 1990 Act where a person has failed to comply with the terms of a LB Enforcement Notice which has come into force. These are:
- (a) that the Defendant did everything “he could be expected to do to secure” compliance with the requirements of the LB Enforcement Notice; or
- (b) that the Defendant was not served with a copy of the LB Enforcement Notice and was not aware of its existence
On conviction, whether by the Crown or Magistrates’ Court the Defendant faces the prospect of an unlimited fine. Similar to Section 9(5) of the 1990 Act a Court can take into account any financial gain in determining the level of sentence.
Commentary
We would advise that if any Court summons is received in relation to offences under the 1990 Act that professional advice is sought immediately. A solicitor can advise you on the likely level of fine, process and the availability of any defences. Fines are unlimited and there are many documented examples of fines upwards of £20,000.00. Further, if found guilty a person can be ordered to pay the local authorities costs in bringing a prosecution and these costs could be substantial. The Institute of Historic Building Conservation maintains a “Historic Buildings Prosecution Fines” table which is available on their website which details levels of fines and costs in relation to prosecutions under Section 9 of the 1990 Act.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
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.
