Complementing the IHBC’s web resource for local authority service standards, ‘Why planning authorities must have conservation skills!’ (http://www.ihbc.org.uk/skills/), Iain Johnston, Partner at sgh Martineau, has reported on a case especially relevant to the private sector, under the title ‘A salutary tale’.
Iain Johnston writes:
Let me set the scene:
A client of ours based in the West Midlands acquired an old farm site which had a dilapidated barn. The barn was a listed building, being a Grade II listing.
The client decided that the barn would be potentially suitable for conversion to residential use. As a result the client engaged a local ‘architect’ to advise on the scheme and to draw up plans for the conversion of the listed barn. The ‘architect’ at the time indicated that he would sort out all the relevant permissions and consents with the Local Planning Authority. It is important to note that the ‘architect’ held himself out as being suitably qualified, however on subsequent investigation it turned out that he had no formal architectural qualifications. The clients, however, were persuaded by suitably headed notepaper and the fact that the ‘architect’ could indicate and refer to a number of planning applications in relation to listed buildings in that particular area as having been dealt with by the Local Planning Authority.
Ultimately, works were carried out to convert the barn for residential use. The architect did not sort out the relevant permissions and in actual fact submitted inaccurate plans to the Local Planning Authority. Based on the prepared plans the works were implemented by the builder and both the client and the builder believed everything was in order.
Some months later, following the completion of the conversion, our client decided to market the property via a local estate agent. It was at this point that the Local Planning Authority saw the relevant promotional papers and noted that there had been no planning permission or listed building consent secured for the relevant work. As a result the Local Planning Authority started formal enforcement action on proceedings in the Magistrates Court against our client.
There are two very important aspects of this case that many people fail to appreciate:
· It is a criminal offence to carry out works to a listed building without having the relevant planning permission and listed building consent in place. S.9 Listed Buildings Act 1990. The offence is one of strict liability and in layman’s terms this means that the Local Planning Authority did not have to demonstrate that our client intended to commit the offence, simply that he was responsible for the implementation of work. Here our client to most people would appear to be blameless, however, unfortunately he gets caught by the terms of the Act in that he knew about the works and authorised those works to take place. The client, however, had no knowledge that he was committing an offence, the client believing that all the relevant authorisations had been secured. It should be noted that the ‘architect’ in this case blatantly failed to advise the client on this point.
· In addition to the criminal action in the Magistrates Court the Local Planning Authority can take enforcement action under the relevant Act, to compel the owner to rectify the unauthorised works. In some cases the Local Planning Authority can require a party to remove and replace relevant works and return a building to its original state. In this case a retrospective planning application and work of rectification were imposed.
In practice, some Local Planning Authorities allow this to be dealt with by way of a retrospective planning application on the part of the offending party. Alternatively, they can serve an enforcement notice seeking specific rectification works within a certain period. In many cases the owner of the property can appeal against an enforcement notice on a number of different grounds. Unfortunately, if the appeal on an enforcement notice is unsuccessful and the enforcement notice procedure is pursued further, a further criminal offence is committed by failing to comply with the terms of the enforcement notice. Please note that the new Localism Act has now sought to lessen the use of retrospective planning applications in enforcement proceedings.
Our client in this case therefore found himself in the humiliating and embarrassing situation of having to attend a Magistrates Court where we had been advised to plead guilty to the relevant criminal offence under Section 9. As a result, he received a hefty fine and a criminal record. This is even though the client had an exemplary record and a good reputation.
In this case, our client was able to sue the purported ‘architect’ for professional negligence and claim damages from his indemnity insurers. However, all this can be prevented if people take a more robust and thorough due diligence approach to the engagement of professionals and of commencing any works in relation to a listed building.
In this case a client should carry out the following steps:-
· Establish that the architect is suitably qualified.
· Insist on seeing and confirming all planning applications submitted to the Local Planning Authority and the securing of relevant consents
· Ensure that the architect has the relevant professional indemnity insurance in place
· The client should ensure he is copied in to all correspondence with the relevant Local Planning Authority in terms of the grant of any planning permissions or consents.
On the basis of the above approach, anyone contemplating works to a Listed Building will at least be able to ensure they have an accurate picture of what is required and the potential hurdles that they need to climb so that they do not transgress the relevant statutory provisions.
Iain Johnston: iain.johnston@sghmartineau.com
