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Repairs and maintenance - is Listed Building Consent needed?

We are seeing a lot of cases of people being required to submit Listed Building Consent applications in the London and the South East, when the work being carried out is only repairs. This is happening more and more, all over the country. Clearly clarification of the subject is needed.  Unfortunately, having researched the legalities (what actually IS the law about repairs and maintenance?) we enter a muddy minefield, which Local Authority Conservation Officers are taking advantage of, by demanding full applications for Listed Building Consent,(often costing over £2000 in architects fees alone) even for minor repairs to timber frames. One case in Hertfordshire was particularly galling, as the cost of the application was as much as the cost of repairs, and the client didn't have the cash to complete repairs as a result.

 

Legislative Background and Requirement for Listed Building Consent (LBC)

The requirement for LBC is defined in Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990, This says: ‘no person shall execute or cause to be executed any works for the 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, unless the works are authorised’.

This bit about ‘affect its character’ is the first major issue: The Act does not make any distinction between works which are seen as beneficial, and works which are considered harmful to the character of a listed building: Any works which affect the building’s character, whatever their impact, are included. Examples include ANY form of damp proofing, removal of harmful cement render and replacement with lime render, removing harmful black paint from timbers, and so on. Whether the works are considered beneficial or otherwise is left to the discretion of the local authority Conservation Officer - who often has no experience or knowledge of the materials or processes being used or proposed.

Section 9(1) of the act makes it clear that carrying out work which would affect the character of a listed building without first obtaining LBC is a criminal offence. 

So where are the Grey Areas relating to repairs?

Section 7 of the act makes no reference to LBC being required for repairs to a listed building. Some conservation officers don't demand LBC applications to be made for repairs, or replacements on a like-for-like basis.

There is a lot of argument about interpretation here, especially as to when repair becomes replacement. Repair is defined in the dictionary as ‘the act of restoring to a sound or unimpaired condition’ or ‘restoration of some material thing or structure by renewal of decayed or worn out parts, by refixing what has become loose or detached’.

So... If you want to replace a rotted Victorian single-glazed sash window with a double-glazed timber version, almost all Conservation Officers would demand LBC.  But, would they require LBC for replacement with a single-glazed exact copy? This is where everything descends into a muddy, grey legalistic mess, and although we can't give out specific advice on this, we suggest that the spirit of the legislation makes both the repair of this window by replacing rotten sills for example, or its replacement in like-for-like, as not requiring Listed Building Consent. We suggest keeping photos of the old, rotten and unusable window for the record. If a Conservation Officer decided after the event to be difficult, they would have a hard time showing that you had comitted any offence

The situation might be different in the case of a oak mullioned window dating to the 1600's. If you were to replace a section of timber with air dried oak, some Conservation Officers might say that it constitutes a repair affecting the character of the listed building and would therefore need LBC.  Again, in our opinion, this is still honest repairs and maintenance and doesn't need LBC - as you can see, it's all in the interpretation of very dodgy legislation that is not very well defined in the first place.

The more extensive the work the clearer the situation becomes. We deal with an awful lot of timber framed buildings, and there seems to be no clear guidance as to what constitutes repair, or maintenance, or when LBC is needed. If you have a timber framed building, and decide to remove a big section of the frame because it is rotten, and replace this with brickwork or blockwork, you would require LBC (and would almost certainly not obtain it!). But what we deal with most of all is repairs, honestly done, to preserve the character and appearance of the building. The biggest change is often removing modern brick infills and replacing them with lightweight lime rendered panels.

Would LBC be needed to cut out a decayed corner post made of elm and replace it with a new one of exactly the same dimensions but in air dried oak? Would this also have been the case if it was even possible to obtain a suitable section of elm to carry out the repair? Possibly not.  But - the vast majority of Conservation Officers wouldn't have a clue what the timber was anyway - I've never met one that knew how to tell elm from oak. Increasingly, we are seeing CO's demand LBC - whether this is 'arse covering' we don't know - its certainly causing a lot of problems.  I've had this exact case in Worcestershire, where an LBC application was demanded by an over zealous and very young, inexperienced PYT (Pretty Young Thing with a Masters Degree in Conservation). In Shropshire, a similar situation was done on the basis of an email and quick phone call to the very sensible Conservation Officer concerned.

Most owners of Listed Buildings are happy to accept responsibility for looking after their heritage asset, as the act now calls their home.  They usually want to do the right thing, but would a local authority have prosecuted or served an enforcement notice if work was done without obtaining LBC? In my experience, CO's enjoy something of a power trip, insisting on LBC for works without any consideration of the cost to the owner - and the fact that they are diverting funds from the building, to the cost of application - a complete, and utter waste of scarce funds.  So - does repair work that is completely compatible with the character of a listed building require LBC, or could it be carried out after submission of a specification of works which is then agreed by the LA as acceptable?  Again, there is a problem here, in that most CO's don't have the knowledge or experience to understand the specification - and just insist on it, without understanding it. I recently saw an example where a CO demanded a specification for pointing brickwork. Contractor gave a spec - lime mortar.  It was approved.  The work was done using hydrated lime, mixed with cement.  When I questioned the CO, she said that was perfectly OK and what was I complaining about.. Sigh..

In days gone by, we often obtained written agreement with the LA and the details of the works were be placed on file as a record of what was done. Many younger conservation officers now take the view that an LBC application must be submitted for any work to a listed building, regardless of whether the work is a repair or an alteration. This is not correct in our view and while some conservation officers appear to think that the legislation allows them to take this position, PPS5 does not advocate this at all.

There are several bits of policy governing this stuff - PPG15 was the original policy that most of us started out working with - it was fairly pragmatic, and had a sensible set of guidance.  The Government then decided to change it, and PPS 5 emerged (I was on the review committee of this piece of legislation) - less helpful, and there is no specific policy in PPS5 covering repairs to a listed building, while paragraph 147 of the accompanying Practice Guide states that ‘minor repairs to a heritage asset are unlikely to require planning permission or listed building consent if the works are carried out using the same materials and techniques, and do not affect the significance of the asset’. This is no different to paragraph 3.2 of PPG15, which stated that ‘Consent is not normally required for repairs, but, where repairs involve alterations which would affect the character of the listed building, consent is required’.

Paragraph 158 of the Practice Guide states that ‘Restoration of a listed building requires its alteration and is almost always likely to need listed building consent and may require planning permission’. The words ‘almost always likely to’ still leave some room for doubt. We are talking about restoration here - not repairs. Semantics and word play..

We should stress that if you are in any doubt over whether the works you are thinking of doing require LBC, the best advice is to ask your local conservation officer first and try to get a written response - often they won't give one - or ask for a 'pre-application' meeting, for which they charge a princely fee.  They give advice in this meeting, but in many cases, it is then overturned when an application is submitted on the basis of that advice. The trouble here is that once you have asked, they know you are up to something, and want to get their sticky paws on the building and interfere. I say this in view of our collective recent experiences with CO's - they are increasingly unhelpful, and increasingly lack any knowledge or experience of working with traditional building materials. This is partly due to an influx of newly qualified PYT's, on a lower pay scale, due to mass redundancy of older, more experienced CO's who used to be very helpful and pragmatic. One only has to look at the flood of applications for Conservation Officer posts by local authorities, offering pitiful salaries.

There are many arguments both for, and against going for LBC for repairs. Clearly the legislation cannot actually help - the wording is so oblique and confusing that it is left to individual interpretation. Conservation Officers use it to generate workload and justify their existence. We try to avoid it by helping clients specify the right materials and the right people to do honest repairs along the SPAB guidelines: Repair, not Replace. In my view, forcing someone to spend £2000 or more on an LBC application to repair something properly, is just taking money out of the repair pot, and cannot be justified. Government is broken and incompetent, and the ambiguity of the legislation here is just another example of how bad things have become.

If it's minor repairs, done properly, there should be no reason for needing any form of permission. Equally, Conservation Officers should be happy to provide advice and help - but this is demonstrably not the case. 

Its interesting to note that there is NO obligation on behalf of the owner of a Listed Building, in any of the legislation, to MAINTAIN it.  You are legally allowed to let it fall down, but you have to ask their permission to do repairs. 

You couldnt make this up, could you?

 

 

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