Making Your Enforcement Appeal (Guide)

Appendix 4

Listed Buildings and Conservation Area Enforcement Notice Appeals

A listed building enforcement notice can be issued by your LPA when they consider that:

Demolition or works for alteration or extension have been carried out to a listed building, without consent, and the works affect its character as a building of special architectural or historic interest.

There is failure to comply with any condition attached to a listed building consent.

A conservation area enforcement notice is issued by an LPA when they consider an unlisted building in a Conservation Area has been demolished without the grant of Conservation Area Consent.

Appeals against these notices are considered by the same procedures as enforcement appeals. Similar rules and timetables apply, as described in this booklet. There are two main differences. Your appeal can be made on any one or more of 11 grounds lettered (a) to (k), which are explained below and in the appeal form. And, in these sorts of appeals, there is no deemed application fee to pay.

Listed Building Enforcement Notices are served under different parts of the the Planning (Listed Buildings and Conservation Areas) Act 1990 - either section 38(2)(a), which seeks to restore the building; section 38(2)(b), which seeks to alleviate the effects of the unauthorised works; or section 38(2)(c), which seeks compliance with conditions. The relevant grounds for section 38(2)(a) are (g) & (i), for section 38(2)(b) the relevant ground is (j) and for section 38 (2)(c) the relevant ground is (k). Note that these grounds cannot be chosen together since they apply to different types of notices. So if ground (g) is chosen, you cannot appeal at the same time under grounds (j) or (k). The important step for you is to establish which type of notice has been issued, and then choose the appropriate grounds of appeal.

Your LPA should have sent you three copies of the ‘Listed Building/Conservation Area Enforcement Notice Appeal’ forms with their notice. But if you do not have an appeal form and cannot get one quickly, you may appeal by letter. Visit our website or phone our helpline number shown at the back of this booklet if you have any questions.

Planning (Listed Buildings/Conservation Areas) Act 1990

A ‘listed building’ is defined in section 1 of the Act as a building which is for the time being included in a list compiled or approved by the Assembly under that section. For the purpose of the Act any object or structure fixed to the building, which, since on or before 1 July 1948, has formed part of the land and is comprised within the curtilage of the building is treated as part of the building. ‘Building’ is defined as including any structure or erection and any part of a building.

Listed Building Consent is required for the demolition or partial demolition of a listed building, or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest. Examples of the types of alteration or extension which would normally require listed building consent are:

a) an extension to a building whether or not it is within the permitted development limits of the Town and Country Planning General Permitted Development Order 1995;

b) alteration such as the removal and replacement of doors and windows; and

c) alterations to the interior fabric of a listed building.

Conservation Area Consent. The provisions of the Act relating to listed buildings are applied, with modifications, to the demolition of unlisted buildings in conservation areas. This requires conservation area consent.

Grounds of appeal – Section 39(1)

(a) That the building is not of special architectural or historic interest. - That is to say that although the building is listed, it is not outstanding and worthy of preservation. This ground, in effect, invites the Assembly to remove the building from the statutory list. In the case of a conservation area enforcement notice, ground (a) reads: “that retention of the building is not necessary in the interests of preserving or enhancing the character or appearance of the conservation area in which it is situated.” (see SI 1990 No 1519 reg 12 and Schedule 3).

(b) That the matters alleged to constitute a contravention of section 9(1) or (2) have not occurred. - That what is alleged in the notice has not taken place as a matter of fact.

(c) That those matters (if they occurred) do not constitute such a contravention. – This ground argues that listed building consent is not needed – for example, because the works do not affect the character of the listed building, or because the works concern a building which is not part of a listed building.

(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 or repair or works for affording temporary support or shelter, and that the works carried out were limited to the minimum measures immediately necessary. – All 3 tests must be satisfied here, for example, that the works in question were urgently necessary because parts of the building were unsafe.

(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. – This ground covers any arguments on the merits of the case.

(f) That copies of the notice were not served as required by section 38(4). – This is the same as ground (e) in a section 174 enforcement appeal – see page 11 of this booklet.

(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 on this ground will claim that the steps said to be required for restoring the building to its former state are excessive. [If you choose this ground you cannot also choose (j) or (k)]

(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 refers to the compliance period stated in the notice. If you claim that it is too short, please state what you consider to be a reasonable period for compliance and why.

(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. – An appeal on this ground would claim that the steps required by the notice would not restore the character of the building to its former state. This is different from an appeal on ground (g) which would claim that the steps required are excessive. This ground of appeal is not available for appeals against conservation area enforcement notices alleging the demolition of an unlisted building in a conservation area.

(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. – Where restoration of the building to its former state has not been required, the works required go beyond what is necessary to alleviate the effect of the works done. (Section 38(2)(b) enables an authority which considers that restoration of the building to its former state would not be reasonably practicable or would be undesirable, to specify steps “for executing such further works specified in the notice as they consider necessary to alleviate the effect of the works which were carried out without listed building consent”.)

(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. – As above, but relating to cases involving a breach of condition attached to a grant of listed building consent. (Section 38(2)(c) enables an authority to specify steps “for bringing the building to the state in which it would have been if the terms and conditions of any listed building consent which had been granted for the works had been complied with”.)

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