Legal Requirements: Listed Buildings

General Guidance with regard to Listed Buildings, also known as Heritage Assets

An owner has legal responsibilities, irrespective of whether the house and buildings are modernised. Looking after a building of a historic nature goes well beyond normal maintenance. Some buildings are so special that the public interest is affected and protection of such buildings is provided under the Planning (Listed Building and Conservation Areas) Act 1990. The general guidance to policy in respect of conservation is now set out by the National Planning Policy Framework, supported by a Planning Policy Guidance published by English Heritage. The Guidance, which attempts to help determine the significance of a Heritage Asset and the likely harm that any proposed alteration will have on that significance.  The Guidance is said to remove some of the red tape and make matters “easier” for commercial interests. Interpretation and development of the new guidance tends to be very much subject to interpretation by the Conservation Officer. It is therefore essential for an owner to consult the Local Authority Conservation Officer or English Heritage at an early stage to ensure that historic fabric is not inadvertently lost but also to confirm that all changes, since the house was Listed, have received Listed Building Consent. Advice notes are available from the Local Authority, and we advise you to familiarise yourself with these before undertaking any work. Also see: https://historicengland.org.uk/advice/hpg/ for a comprehensive guide to the various issues that can arise.

 

Bear in mind that when considering whether to grant Listed Building Consent, the Conservation Officer now considers the property as a “Designated Heritage Asset” and will carefully assess the “significance” of the part or parts of the property you wish to change.   A heritage asset is a building, monument, site, place, area or landscape considered to have a degree of significance.  This will therefore include Listed Buildings and Conservation Areas. This policy document now provides alternative guidance to Local Authority Conservation Officers, and any Listed Building application now requires submission of a "Statement of Significance" before a Listed Building application is considered.  The aim of the policies within the NPPF is to conserve Heritage Assets, for the benefit of this and future generations. This is done by supporting their maintenance and by requiring that change to them is managed in ways that sustain and where appropriate enhances their heritage significance. The National Planning Policy Framework and its predecessor, the Planning Policy Statement 5, are still recent publications and the issue of “significance” is still evidently open to interpretation & definition by the individual Conservation Officer, although consideration is now to be given to "Heritage as a shared resource" and what will be in the public interest, such that the impact of any alterations on the setting of the general area are particularly important.  There will of course be many matters under the new format of which the “public” is unlikely to be concerned, particularly where historic fabric has already been lost, but the likely "HARM" to the Heritage Asset needs careful consideration.  Of course, the fact that a public footpath passes the side of the gardens to the house means that “public” interest may be influenced in this instance, but there are Court cases whereby Wind Farms have not been able to obtain consent due to their adverse impact on the character and setting of the Listed Building and / or Heritage Assets..

 

In essence, in order to protect the general setting of the house(s), any planning application in the vicinity of the subject property may be regarded as "significant", or require careful consideration in order to avoid adverse impact on the character and the setting of the house(s), including any action taken to lay ground source pipes etc below ground. The Guidance may well impact on what can be done to this Building, without formal consent, and you are therefore advised to have reference to such Guidance now and when updated.  Much of the significance of the building is outlined in the List Description, a copy of which is attached and the Historic Environment Record of this and neighbouring buildings, although any Heritage Assessment would also have reference to some history of the property and the area around, such as the presence of other Heritage Assets nearby. The significant elements of the building may therefore include some of the architectural features of the original house, internally & externally, as well as the original layout and appearance to the public. However, this building also includes many other original features that should be retained, where possible.

 

For the present, owners of Listed Buildings are encouraged to seek expert advice on whether any proposed works require Listed Building Consent, and on the best way to carry out any such works to their property. It should be possible to obtain such expert advice from a Specialist within the Local Planning Authority, English Heritage, or indeed, ourselves. Initially, the owner is encouraged to undertake a detailed record of all buildings, plant etc prior to any alteration, demolition or extension, or where interior work of significance will be lost, affected by sub-division or substantially rebuilt with a view to providing the Planning Authority with a Heritage Statement. Remember, the protection extends to internal as well as external features, and to pre-1948 structures within the “Curtilage”.

The extent of the curtilage is open to interpretation.  Defining the extent of the curtilage will be important. Curtilage is an area of land around a listed building within which other buildings pre-dating July 1948 may be considered listed.   Some buildings have no curtilage. For some the extent will be clear (such as the garden boundary) but for others assessing the curtilage may be difficult. Can I suggest you look at the attached article on the subject of "curtilage: http://ihbc.org.uk/context_archive/97/legal/CTX97%5B6%5D.html.  In general, any pre-1948 structure that formed part of the land and was in the curtilage of the principal listed building at the date of listing (or possibly 1 January 1969 for buildings listed before that date - this is not a settled point of law) and is ancillary to the principal building is considered to be part of the listing.  As from 26th June 2013 some new list entries or list entries amended after that date may expressly exclude such curtilage buildings from protection. The courts have considered the precise extent of curtilage on many occasions.  Determining the exact curtilage of any building is a complex question and much will depend upon the facts of the individual case. The key considerations are the physical layout of the buildings; the ownership past and present; and, the function of the buildings and spaces past and present. For some sites the curtilage will be clear. A typical house and its garden will usually have its curtilage defined by its boundary.

Not every building will have a curtilage. A town centre building that has never had any outside space could have no curtilage. The curtilage of some buildings may be in separate ownership, such as a country house and stable block converted into residential dwellings. The stable block may still be considered to be within the curtilage of the country house for listing purposes. It is important to establish what is listed, as it is potentially a criminal offence to fail to apply for listed building consent when it is required. Any assessment of curtilage is therefore a judgement of which structures, walls etc are ancillary to the main "Listed" building and has to be looked at on a case by case basis, particularly where the extent of the curtilage needs to be assessed based on the historic association and proximity of the structure.  In addition to the above article, can I suggest you read see the archive material held by the IHBC on this matter. http://www.ihbc.org.uk/context_rw/ and type in "curtilage" in the search, which gives further information.  My understanding is that the extent of the curtilage does not reduce just because part is sold off. The definition of curtilage seems to have been the subject of changing case law over the years and has therefore been subject to interpretation by Judges, Conservation Officers, and Planning Officers where no qualified Conservation Officers are present, albeit perhaps appearing arbitrary in nature. 

 

It is a criminal offence to demolish or alter the character of a Listed Building or buildings within the curtilage without Listed Building Consent. There is no time limit. Equally, the owner can be required to carry out works as considered urgently necessary for the preservation of the buildings on site. If he / she fail to carry out such work, the Authority may undertake the work, with costs recoverable from the owner, or, they may allow retrospective consent. (Subject to conditions). Considering the “risk”, you are urged to comply with such requirements.

Listed Building Consent will therefore be required for any of the following works undertaken at the property since the house was listed:

  • Any alteration to the fabric to alter/incorporate Services.

  • Any alteration to the character of the building or its setting. This includes works within the boundaries of the property (curtilage); or alteration to internal or external features, such as window frames, partitions, drains etc, etc.

  • Introduction of fittings.

  • Demolition or reconstruction of any element of the building, including temporary removal. There is a general presumption against demolition.

In addition, any alterations to Services may require compliance with Building Regulations; Building Regulation approval will be required, in addition to Listed Building Consent for any material alterations, such as underpinning; strengthening, damp proofing & timber treatment works.  Please see Guidance from English Heritage on Listed Building consents & Planning Permission:

http://www.english-heritage.org.uk/professional/advice/hpg/consentandplanningpermission

 

Broad Principles to Be Observed:

  • Meticulous recording before the work is carried out.

  • Minimum intervention to the historic fabric to secure the future of the building. i.e. the original fabric should be retained where possible.

  • Honesty in repair or restoration. Any alterations or repairs should not attempt to hide their presence.

  • Recognition of the sanctity of historic fabric, and the need to keep the historic plant. Equally, recognition that the buildings on site represent a useful resource and asset, capable of serving a modern function or purpose. Replacement of degraded or defective fabric may be influenced by Health & Safety standards, including the possibility of land contaminants on site, structural stability, and unacceptable deterioration.

  • Respect for past alterations that contain any conceivable historic interest.(usually pre-1948)

  • Abstinence from any and all speculative restoration or reconstruction. No attempt should be made to reconstruct or reinstate any demolished or altered buildings, unless accurate and detailed records are available.

  • Wherever possible, all work should be reversible.

VAT: In March 2012 Budget, the Government arranged removal of the zero rate for alterations to listed buildings not completed by October 2012, unless appropriate consents were applied for or granted before 21 March 2012. While repairs on listed buildings have always been subject to full rate VAT, if any planned work fitted the definition of an alteration, providing it had been granted listed building consent and was neither deemed a repair or maintenance, previously qualified it for zero-rate VAT. See: http://www.spab.org.uk/media-centre/press-releases/press-release/?ContentID=212. An alteration is defined as something undertaken to the fabric of the building which is more than ‘trifling or insignificant'. According to HMRC's own internal guidance, the fabric of a building "comprises the elements that characterise the structure as a building, such as walls, roofs, internal surfaces, floors, stairs and landings and all doors and windows. The fabric of the building also includes plumbing and central heating systems, and mains wiring and lighting systems. Hence, if this proposal by the Government remains, it is too late to obtain the zero rate benefit. This will have impacted on market values for Listed Buildings in need of upgrade compared to the pre-2012 scenario.

 

The Rules, as proposed:

Supplies of building materials or construction services made on or after 1 October 2012 will be subject to VAT at the standard VAT of 20%. Under transitional relief, zero rating will now only be allowed for eligible approved alterations on products where listed building consent had been applied for before 21 March, 2012 and these projects will continue to benefit from zero rating on works completed to 30 September, 2015. Any projects completed by 1 October 2012 could have been zero rated. Clearly, there are significant cost implications to the Government’s rule change.

 

For further general advice on Heritage Matters, please see www.heritagehelp.org.uk/ which also provides links to other sites. 

 

Please also see the recent changes set out by Government on Planning Law as it relates to Listed Buildings and how the protection of our heritage is changing: http://www.english-heritage.org.uk/about/multimedia-library/err-bill.  It is now legally possible, where appropriate, for a list description to exclude parts of the building, or any curtilage structure which are not of special interest, and for anyone to apply for a Certificate of Immunity from Listing, provided they are able to supply sufficient information to support the assessment.