How to avoid Listed Building enforcement and prosecution headaches
With the Government seeking to tighten up the enforcement regime in England through its Levelling Up & Regeneration Bill, now is the time for Local Planning Authorities to assess their current practices and for developers to review common pitfalls.
We recently advised on a case where a local planning authority was forced to withdraw its criminal prosecution days before a hearing, for causing damage to a Grade II Listed building. The works were undertaken by a third party, and not by our client, who was a prospective purchaser. This example helps to highlight the need for both authorities and developers to be up to speed with the challenges of undertaking works to listed buildings.
What is the listed building enforcement regime?
Generally, the most commonly prosecuted offences for works to listed buildings are under section 7 and section 9(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Section 7 prohibits the alteration, extension or demolition of a listed building "in any manner which would affect its character as a building of special architectural or historic interest" without authorisation.
Section 9(2) prohibits a person executing, or even causing to be executed, works to a listed building without complying with a condition on a listed building consent.
Our client was being prosecuted under section 59 of the Act. This section has a focus on intentional damage rather than works, which means it covers any damage to a building that is caused deliberately. It does relate to damage which would affect the character of the building as a building of special architectural or historic interest, the remit of a section 9 offence.
The drafting of section 59 is unusual in that it is directed at a person who is entitled to do or permit the “act in question”. In reality this will often mean the owner of the property. It is important to note that section 1 of the Criminal Damage Act 1971 prohibits causing damage to the property “belonging to another“, whereas section 59 is focused on property belonging to oneself. The distinctions are important.
Whilst our prompt instruction prevented the prosecution from proceeding to a hearing, our client incurred the cost and stress of having to deal with it. Wanting to maintain a positive relationship with the Council, they decided not to pursue a costs award. This is all apart from the fact the Council quoted entirely the wrong Act on their summons.
The advice to local authorities is to take care when considering charges and whom to prosecute. The habit of serving statutory notices on a long list of parties does not translate into who can or should be prosecuted. With the intense pressure on public finances, it remains important not having to explain why the Council has been ordered to pay a defendant’s costs on a flawed prosecution.
With changes the Levelling Up & Regeneration Bill is likely to bring, now is the time for enforcement authorities to review their enforcement and prosecution policies and procedures.
Contact our Planning specialists if you require legal advice on listed building enforcement issues.
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