Listed Building ConsentRequirements for Alterations and RepairsNicholas Doggett
The aim of this article is to provide guidance on the need for listed building consent (LBC) for works to a listed building. After a short introduction to the legislative background, it focuses on the principles and practicalities of what constitutes an alteration and the circumstances in which LBC may also be required for repairs. While much of what follows applies to all types of listed building, the focus here is on alterations and repairs to domestic dwellings in order to provide guidance for homeowners as well as for conservation and other professionals. In addition to the need for LBC, it is important to remember that planning permission will be needed for any extension (and some external alterations) to a listed building. Approval under the Building Regulations will also usually be required for both internal and external works. The situation described here relates to England and Wales but not to Scotland and Northern Ireland, where slightly different circumstances pertain. THE LEGISLATIVE BACKGROUND AND THE NEED FOR LBCThe need for LBC is set out in Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which states that ‘no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character [emphasis added] as a building of special architectural or historic interest, unless the works are authorised’. The words ‘affect its character’ are critical. No distinction is made, in Section 7 or anywhere else in the act, between works which are considered beneficial and works which are considered harmful to the character of a listed building: any works which affect the building’s character, whatever the nature of their impact, are included. The question of whether the works are considered to be beneficial or otherwise comes later in the determination of the application by the relevant decision-maker (usually the local authority but sometimes a planning inspector or the Secretary of State). As Section 9(1) of the act makes clear, carrying out works which would affect the character of a listed building without first obtaining LBC is a criminal offence, notwithstanding that Section 9(3)(a-d) offers a series of defences (relating to ‘safety or health or for the preservation of the building’) against that offence. The maximum penalties for carrying out unauthorised works to a listed building are currently a fine of £20,000 or six months’ imprisonment on summary conviction and an unlimited fine or two years’ imprisonment on indictment. PRINCIPLES, PRACTICALITIES AND ‘GREY AREAS’In practice there is usually no argument that demolition, alteration or extension of any listed building will require LBC, and this will apply whether the works are internal or external. (The surprisingly common belief spread by some estate agents that a Grade II listing confers statutory protection on just the outside of the building or its facade is of course a myth.) However, there are a number of grey areas worth exploring. Several issues are raised in connection with repairs. First, Section 7 of the act makes no reference to LBC being required for repairs to a listed building and it may be because of this that even today many local authority conservation officers do not require LBC applications to be made for repairs, particularly if they are made on a like-for-like basis.
There is, however, considerable scope for interpretation here, not least over when repair becomes replacement. The Shorter Oxford English Dictionary defines repair as ‘the act of restoring to a sound or unimpaired condition’ or the ‘restoration of some material thing or structure by the renewal of decayed or worn out parts, by refixing what has become loose or detached’. While most if not all conservation officers would require LBC for the replacement of a decayed 19th-century single-glazed sash window by a double-glazed timber equivalent, some would also require LBC for its replacement by a single-glazed replica. It is unlikely, however, that many would insist on an application for LBC for repair of such a window, even though this could involve the loss of original material by cutting out decayed timber and splicing in new. The situation would probably be different in the case of a 17th-century timber-mullioned window. Here, the replacement of a substantial section of timber with matching new timber might be considered to constitute a repair affecting the character of the listed building and would therefore need LBC. The more extensive the work the clearer the situation becomes. Thus, in the case of a timber-framed listed building now rendered over (and rendered at the time of listing), no respectable conservation professional would dispute that replacing a section of decayed timber-frame with blockwork or brickwork and then re-rendering to the same specification would require LBC (and would almost certainly not obtain it). But what would be the case if like-for-like materials were used? For example, would LBC be required to cut out a single decayed corner post made of elm in such a building, replacing it with a new one of exactly the same dimensions but in ‘new’ oak and then re-rendering the area affected? In the case of a Grade II listed building in Dorchester-in-Thames some years ago the answer was ‘yes’. Would this also have been the case had it been possible to obtain a suitable section of elm to carry out the repair/replacement? Possibly not, but if the elm itself was ‘new’ would this actually be significantly different to using ‘new’ oak? In this case the owner of the building was particularly conscious of his responsibilities as the guardian of what we must now call a ‘heritage asset’. He was clearly anxious to do the right thing, but would a local authority have prosecuted or served an enforcement notice on him had he carried out this work without first obtaining LBC? This may seem to be entirely academic and surely any local authority would think hard before going down such a route. However, this question goes right to the heart of the matter, that is: does repair work that is completely compatible with the character of a listed building require LBC or could it instead be carried out following submission of a detailed specification of works to, and agreement in writing from, the local planning authority that the works are acceptable? In the past this was often considered an appropriate method of proceeding. A written copy of the agreement and the details of the works would be placed on file as a record of what had been done. Today, matters are not always so simple. Many conservation officers now seem to take the view that an LBC application must be submitted for any work to a listed building, regardless of whether the work is a repair or an alteration. This is not, however, necessarily correct and while some conservation officers appear to think that PPS5 requires them to take this position, PPS5 does not advocate this at all. First, there is no specific policy in PPS5 covering repairs to a listed building, while paragraph 147 of the accompanying Practice Guide states that ‘minor repairs [to a heritage asset] are unlikely to require planning permission or listed building consent (where relevant) if the works are carried out using the same materials and techniques and they do not affect the significance of the asset’. This is arguably little different in thrust to paragraph 3.2 of PPG15, which stated that ‘Consent is not normally required for repairs, but, where repairs involve alterations which would affect the character of the listed building, consent is required’.
However, the Practice Guide does take a different and seemingly more robust attitude to restoration, a topic only obliquely referred to in PPG15 (in paragraph C.6 of Annex C). Paragraph 158 of the Practice Guide states that ‘Restoration of a listed building requires its alteration and is almost always likely to need listed building consent and may require planning permission’. Intriguingly, though, the words ‘almost always likely to’ still leave some room for doubt. Works of repair or restoration are not the only grey areas where LBC is concerned. Another, which has caused much controversy, is the subject of painting the exterior of a listed building. It is now commonly accepted that painting or rendering the surface of a wall that was originally intended to be left (and has remained) untreated is likely to be both physically and visually damaging. Such work is strongly discouraged and would require LBC, which it would almost certainly not obtain. But what of a wall that is already painted and where the owner simply wishes to change the colour? PPG15 was relatively relaxed on this, stating in paragraph 3.2 and C.17 of Annex C that LBC would be required where the ‘character’ of the building would be affected but significantly softening this by adding: ‘In many cases the colour of the paint may be less important than the first application of an unsuitable covering which could be damaging to remove’. This sensible and pragmatic approach made it clear that conservation officers should not (as they are sometimes accused of doing) act as ‘taste police’, dictating which colours they feel are appropriate and which are not. This was certainly the attitude South Oxfordshire District Council took to the repainting of the long-painted facade and return elevation of a prominently sited Grade II listed building in Wallingford some years ago (above left). The previous colour was a light green, the new colour (depending on one’s view) was a vibrant or lurid dark pink. This was primarily a matter of personal taste. Certainly, there was no evidence to suggest that replacing one modern proprietary paint with another had in any way affected the character of the listed building and (to the dismay of some in the town who clearly disliked the colour) the council therefore declined to require that the owner submit an application for LBC. Some 12 years on, the colour remains, probably to the chagrin of some but not, in my opinion, to the detriment of the building’s character as a listed building. Finally, and most importantly, it should be stressed that if an owner is in any doubt over whether the works they intend require LBC, the best advice is to ask his or her local conservation officer first and to ensure that a written response is received and retained. Under PPS5 this must extend even to paint colour in situations like that described above as paragraph 150 of the Practice Guide simply (but not particularly helpfully) comments that a change in external paint colour ‘may’ require LBC.
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The Building Conservation Directory, 2012
Update, September 2012
AuthorNICHOLAS DOGGETT BA PhD Cert Archaeol
IHBC MIfA is managing director of Asset Further informationRELATED ARTICLES
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© Cathedral Communications Limited 2012
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