Listed buildings are recognised in law as having special architectural or historical interest and their protected status ensures any alteration or demolition is carefully controlled to safeguard the buildings' heritage value for future generations. With these factors in mind, it is important to understand who bears the duties and liabilities for their maintenance.
When a listed building is damaged, the owner is responsible for the preservation and repair, even if the damage has been caused by a third party. Whilst the priority is to preserve the asset rather than penalise the parties involved, the Council does have a range of enforcement powers at its disposal and the choice of approach depends on several contributing factors including causation, enforcement history, ownership structure and the scale of works. Our team of experts are here to keep you equipped with the correct knowledge so you can ensure compliance for your assets.
1. Enforcement action - preservation
These enforcement powers are aimed at preventing further deterioration of the asset and ensuring its long-term preservation.
If an asset is considered at risk and urgent repairs are needed an Urgent Works Notice can be issued under Section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act). This is reserved for unoccupied buildings and allows the Council to execute any works which are 'urgently necessary for the preservation' of the building. This typically involves works to keep the building weather-proof, safe from collapse or safeguarding it against theft or vandalism. A minimum of seven days' written notice is required before the Council enter the property following which the Council can recover its costs directly from the owner.
In instances of sustained neglect, the Council may opt to issue a Repairs Notice. This is appropriate when a building is not being properly maintained or preserved and specifies the works the owner must undertake to address the disrepair. If, after two months, the owner has not taken reasonable steps to comply with the Repairs Notice, it can open the doors to a compulsorily purchase of the property via Section 47 of the 1990 Act.
Compensation payable for compulsory purchase of such a building is based on its open market value and follows the 'principle of equivalence' where the owner should be no better off nor any worse off financially following the acquisition. As the Council would assume the owner's responsibility for the maintenance and preservation of the building, this route tends to only be used as a last resort in cases of persistent neglect.
2. Enforcement action - remedial works
Not all damage will stem from neglect or accidents. Where damage has been caused by unauthorised works undertaken without or in breach of a condition in a listed building consent, an Enforcement Notice can be issued under Section 38 of the 1990 Act to order that the building is restored to its former state or alternative works are carried out if restoration is impractical.
An Enforcement Notice is therefore more focused on short-term restoration of the building to correct defects and remove damage. Notice can be served on both owners and occupiers, and non-compliance can attract criminal liability.
3. Enforcement action - unsafe buildings
Occasionally, the risk posed by a damaged listed building extends beyond heritage concerns and becomes a matter of public safety.
Pursuant to Section 77 of the Building Act 1984 (the 1984 Act), the Council can apply to the court to seek a court order requiring remedial or demolition works where the building poses a serious danger to the public. Alternatively, if the Council additionally believe immediate action should be taken to remove this serious danger to public safety, the Council can take these steps itself through the Section 78 Dangerous structures emergency measure mechanism.
Whilst the Council can recover the remediation costs from the owner, a court has discretion as to whether the costs should be borne wholly or partly by another party, such as an occupier. It should be noted that the Council cannot recover its reasonable costs under Section 78 where immediate action was not necessary and it could have reasonably proceeded under Section 77. The Council should therefore give careful consideration to the most appropriate route before acting.
If damage is sustained by the Council when the owner was not in default, the Council will be liable to pay full compensation to the owner, and the owner or occupier can also apply for compensation from the Council if damage is sustained and the Council were not justified in using its powers.
4. Enforcement Notice: how to stay ahead
If your listed building is damaged or in disrepair, the immediate priority is to secure the site, prevent any further deterioration and ensure the area is safe. Before undertaking any repairs, even those that are urgent or minor, it is essential to confirm whether listed building consent is required. Seeking early legal or specialist heritage advice on this point can help prevent unintended breaches and avoid compounding the issue.
If you have been served with or you are threatened with enforcement action, prompt legal advice is essential as time limits can apply and early advice can make a significant difference to potential outcomes.
If you require support navigating these issues, please get in touch with our Planning team and our specialists will be happy to support with any questions or concerns.
