Listed Building Prosecutions: A Practical Guide “Pitfalls Which Local Planning Authorities Should Avoid”

Wed, 01 Jul 2015

Introduction

There are three principal weapons in the local authority armoury to tackle breaches of planning control in respect of listed buildings: (i) criminal prosecution (ii) listed building enforcement notice and (iii) injunction pursuant to section 44A (1) of the Listed Buildings Act 1990. They are not mutually incompatible. Criminal prosecution can be pursued alongside service of an enforcement notice or injunctive proceedings.

As a general rule of thumb if there is some uncertainty as to whether a breach of planning control has taken place, the local authority may be better advised to pursue an enforcement notice/injunction where this matter needs to demonstrated on the balance of probabilities rather than prosecution where it must be proven to the exacting criminal standard. 

An injunction is the most draconian remedy, but is pursued far more readily than it was in the past. It could be well deployed in the following three circumstances, to (i) prevent anticipated unauthorised works (ii) remedy damage where there is a sense of urgency for example where if urgent remedial action is not taken soon further degradation is likely and (iii) compel compliance with an enforcement notice where the defendant shows little appetite for doing so.

This article shall focus on criminal prosecution and aspires to provide practical advice on how to ‘get a charge home’. 

The Offence

Buildings of special architectural or historic interest are protected in this country by the 1990 Act. The Secretary of State is required to compile lists of such buildings, and it is a criminal offence under section 9 to execute certain types of works in relation to a listed building without first obtaining the authorisation of a Listed Building Consent. Section 9 (1) makes it an offence to contravene section 7. This section provides:

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

Prosecution is usually brought by the local planning authority. However, as with other offences it may be brought by members of the public, or English Heritage pursuant to s 33 of the National Heritage Act 1983

When considering the charge a distinction must be drawn between ‘demolition’ of as against the ‘alteration’ to a listed building. The distinction may not always be clear. What should one make of very substantial works which involve pulling down almost all of a listed building? Lord Hope made clear in Shimizu (UK) Ltd v Westminster City Council [1997] 1 AER 481 that this was a question of fact for the Tribunal to decide. Obvious factors which may touch on the issue include: What proportion of the building was removed? Which part of the building was removed and for what purpose? By what means did the removal take place? In Shimizu it was found that demolition save for the façade and chimneys was demolition for the purposes of section 7.  Where parts of the building remain and the Prosecution is uncertain as to the proper characterisation, it may be appropriate to consider laying a further Information in the alternative. 

Why is the demolition/alteration distinction important? The reason is that when the Prosecution alleges an offence of alteration it must go on to prove that the alteration affects the special architectural or historic character of the building. This requirement does not apply to demolition. 

This “affecting the character” threshold is not normally difficult to satisfy. The Prosecution, to make out an offence, need not show that the alterations are harmful or unsympathetic. Although as an aside one can observe that if a change was found to affect the special architectural or historic character of the building but in a sympathetic manner, it may be questionable that it is expedient to prosecute. If an effect on the special architectural or historic character of the building is found to be harmful this would plainly be an aggravating feature when the Court addresses its mind to sentence. 

In R (on the application of East Riding of Yorkshire Council) v Hobson [2008] EWHC 1003 (Admin), the Court of Appeal provided guidance as to what approach should be taken when assessing whether the special architectural or historic character of the building has been affected by the unauthorised works. The defendant had been engaged by the owner of a Grade II listed building, who had obtained listed building consent for extensions and alterations to a stable block. The works carried out went substantially beyond those permitted by the consent in that the stable block was wholly dismantled then reconstructed, although some of the original bricks were used. The prosecution argued that the dismantling of the stable block, without reference to the rebuilding, constituted works of alteration which affected the character of the listed building, taken as a whole.

Keane LJ stated that the assessment must be undertaken at the end of the works, rather than at some mid point. He stated: “If what is being done by way of works or alteration to a listed building involves both a stage of removal and dismantling and a stage of replacement or rebuilding, it cannot, in my judgment, be right to cease the assessment of the effect of these works of alteration in an artificial manner part of the way through” (at para 17). The Court made clear that the law in this instance was not concerned with the temporary or transient position. 

He went on: “Thus, if there was some appreciable time gap between works of removal or dismantling on the one hand and any replacement or rebuilding activity on the other, the court might take the view that those two elements were separate and distinct and that only the former constituted the works of alteration. Particularly would that be likely to be so if there was evidence that the replacement or rebuilding works had only come about because of some step taken or warning given by the planning authority, or other evidence of an intention not to proceed with such later works for the time being” (at para 20).

How does the Court determine whether the unauthorised works would affect the character of the building? In most cases this would be a straightforward matter of fact for the Judge upon scrutinising photographs of the works (preferably with the benefit of ‘before’ and ‘after’ pictures) and architect’s plans and, perhaps in an unusual case, a site visit. If there is to be a meaningful dispute, expert evidence may be required. The Prosecution’s Conservation Officer can give evidence to explain why in his/her view the unauthorised works, when looked at in the round, affect the character of the building. The Defence may rely upon its own expert. In the ordinary course of events, it would be well-advised to choose an independent expert who can come to the case afresh. If the Defence relies upon the architect/builder who was involved in the works, the Court may afford less credence to their view as they do not come to the case with a fresh set of eyes. 

When judging whether the unauthorised works would affect the character of the building one could consider any change to:

a)    the form, appearance or integrity of any element or aspect, including spatial character, that contributes to its character as a building of special interest
b)    the structural integrity of the building
c)    the relationship between a building and its site that contributes to its character as a building of special interest

The scale of the works may have a bearing on the issue, but as the government’s Best Practice Guidance on Listed Building Prosecutions (2006) makes clear it may not necessarily be indicative. In some cases, listed building consent may be needed for what would usually be regarded as de minimis works under the planning regime, which, being too minor to constitute development, do not require planning permission. However, in other cases substantial works to a listed building may have only a neutral impact on those aspects of its character which contribute to its special historic or architectural character.

The offence is one of strict liability. It matters not whether the defendant was aware that the building was listed or whether his intentions were noble. Indeed, in R v Sandhu [1997] JPL 853 the Court of Appeal held that, where evidence of the defendant’s motive was introduced by the prosecution, this was inadmissible evidence which prejudiced the defendant’s right to a fair trial. This suggests that prosecutors must therefore ensure that evidence at trial is restricted only to establishing the elements of the offence and does not go beyond these points to the question of intent. Once found guilty, these matters can then be brought to light when the Court considers sentence. At this stage, the Prosecution may rely upon an additional witness statement to assist the Court as to the defendant’s blameworthiness. 

The Prosecution’s Evidence

The evidence would normally be in the form of a statement from the investigating conservation officer. One would expect to see:

a)   Documentary evidence to prove the listing and the list description which explains how the building is worthy of statutory protection.
b)   Plans and photographs to show the nature and extent of the works, why they are considered unauthorised and the impact of the works on the character of the heritage asset.
c)   Evidence that the defendant executed the works or caused them to be executed. The former is usually the building contractors themselves; the latter is the home owner. Often the Council will have no direct first hand evidence of this, in which case the evidence is inferential (often derived from an inspection and conversations on site): who else apart from the owner/occupier would go to the trouble of paying contractors to undertake building work?
d)  The picture painted as to how the defendant has conducted himself, whilst not overstepping the mark of providing prejudicial evidence as to motive. Has he engaged constructively with the Council’s investigation or has he been obstructive and made it difficult for officers to visit his land? Has the defendant honoured promises made to officers in the past or has he behaved in a misleading way? Has the defendant displayed a familiarity with the planning system? Whilst not strictly relevant to guilt in respect of a strict liability offence, it goes not only to sentence but also the defendant’s credibility if he seeks to rely upon a defence to the charge. 

The Statutory Defence
Section 9 (3) of the Act provides:

(3) In proceedings for an offence under this section it shall be a defence to prove the following matters— 
(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building; (b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;
(c) that the works carried out were limited to the minimum measures immediately necessary; and
(d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable."

The defendant bears the burden of making out the defence on the balance of probabilities (such that the Court considers it more likely than not that the defence is proven). In order for the defendant to discharge his burden of proving the “urgently necessary” defence, a clear explanation should be provided, substantiated by evidence, of how the works carried out were limited to the minimum measures immediately necessary. To succeed, the defendant must satisfy the Court that other less invasive means could not have been deployed. How can this be done in practice? The evidence should identify the potential alternative means and explain, in turn, why they would have been insufficient. 

In seeking to challenge the statutory defence, the Prosecution should seek to identify features in the unauthorised works which go beyond that which was immediately necessary. In Carmarthenshire County Council v Humphreys [2010] EWHC 1958 (Admin), the Court of Appeal reversed an acquittal on the grounds that Magistrates had failed to give sufficient reasons to explain why the works had gone beyond the minimum measures immediately necessary. This suggests that one should approach the assessment of the statutory defence with some rigour. Mere assertion is not enough. 

Pitfalls for the Prosecution to Avoid

The Prosecuting authority should act in accordance with the Code for Crown Prosecutors and its own prosecution policy. Helpful guidance is also found in the government’s Best Practice Guidance on Listed Building Prosecutions (2006). 

Decision to Prosecute

There is no requirement obliging Prosecutors to make a written note of the decision to prosecute. However, it is good practice to prepare a written note, setting out the factors to which the Prosecutor has had regard to obviate the risk that the defence may raise an abuse of process argument on the grounds that the decision was made inconsistent with or lacking regard to its prosecution policy. 

Authority

When launching criminal proceedings the local planning authority must ensure that they have legal authority to do so. The Council’s Constitution should prescribe this. Must authorisation been given by the Planning Committee? Is the ‘sign-off’ by the Chair of the Planning Committee sufficient in the absence of a meeting of the body? In the alternative, is this form of enforcement delegated to officers? 

Disclosure

All evidence which is capable of supporting the defence or undermining the prosecution’s case is disclosable. There is an on-going duty to review on local planning authorities to take account of any change in circumstances. Obvious staging posts along the way would be on the receipt of a defence statement or further evidence. 

One obvious category of evidence which the defence will leap on relates to any apparent inconsistency of approach by the Council. It is not unheard of for different parts of the Council or different officers unconnected to the investigation to not necessarily sing from the same hymn sheet. A difference of opinion, or emphasis, may become apparent from site visit notes, pre-application advice or reports derived from previous applications/enforcement investigations. The fact that the ‘new’ Conservation Officer seems to take a ‘harder line’ than her predecessor is not fatal to a Prosecution, but the Council needs to be ready when confronted by an accusation of inconsistency to explain what may appear to be a change in approach. Such evidence may be useful fodder in cross examination to undermine the Prosecution’s case as to the extent of the unauthorised works and the extent to which they can convincingly be said to affect the heritage asset’s character.   

Caution

Officers, who may not have frequent exposure to the procedure of the criminal courts should respect the rules of evidence. In particular, if the officer seeks to rely upon an incriminating statement made by the defendant to him/her during the course of the Council’s investigation one must have regard to section 67(9) of the Police and Criminal Evidence Act (PACE). This states: “Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code”.

Whether a Council employee constitutes a person charged with the duty of investigating offences is a matter of fact, however one test is whether a prosecution might result from the investigation (R v Bayliss [1994] 98 Cr App R 235).

To take a typical example: a conservation officer attends a site to assess whether the works have been undertaken in accordance with the Listed Building Consent and talks to the landowner. Questions revolving around whether the extent of the works are faithfully in accordance with the consent are likely to fall under PACE since it is apparent that the landowner may have committed an offence and the questioning goes to the facts of the offence.

Code C of the PACE Codes of Practice is applicable to the conduct of interviews. The relevant provisions are as follows: 

A person whom there are grounds to suspect of an offence must be cautioned (Code C10.1), an interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence which must be carried out under caution (Code C11.1A), the interviewer should remind the suspect of their entitlement to legal advice, (Code C11.2).

The words of the caution will be familiar to those who watch any television. 

Section 78 (1) of PACE provides that “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”.

If officers fail to comply with the PACE Code of Conduct, there is a significant risk that any statements made by that individual will be inadmissible in any future criminal proceedings. 

Offence or Offences?

One should consider whether the works that have been carried out amount to one offence or multiple offences. Prosecutors should consider whether two or more separate criminal acts may be alleged in one Information if the accused’s conduct comprised a single activity. However, works to listed buildings are often carried out over a period of time and can involve a number of different activities and trades. In these cases, the Prosecutor may take the view that these acts, potentially carried out by different defendants at different times, constitute separate offences. As the government’s 2006 guidance makes clear, it is important to give careful consideration to this point since an Information may be invalid if it alleges more than one offence in a single Information. In this scenario, the prosecution may be asked by the court to pick one offence only on which to proceed, with the remainder being struck out but, alternatively, the case may be dismissed.

Which Defendant?

In relation to companies, prosecutions can be brought both against the company as a whole and, either in addition or in the alternative, against individual employees of that company (see s331 Town and Country Planning Act 1990, as applied by Planning (Listed Buildings and Conservation Areas) Act 1990 s89(1)) and its directors personally.

Sentence

If the matter is dealt with in the Magistrates Court the defendant may be fined up to £20,000 or sent to prison for up to 6 months. In the Crown Court the fine applicable is unlimited and the prison sentence may be up to 2 years.

When determining the fitting sentence in cases such as these some particular issues are relevant, including:

a)    The importance of the building. What is the grade of the listed building?
b)    The extent of the breach. Was it a case where unauthorised works were undertaken without recourse to a Listed Building Consent or a case where the works went beyond the scope prescribed by the consent? If the latter, was the departure from the permitted plans flagrant or modest? 
c)    Was the criminality a consequence of misunderstanding or carelessness (such as a miscommunication between the defendant and his builders) or was it deliberate?
d)    The extent of the harm to the integrity and character of the building. Were the unauthorised works undertaken to a particularly sensitive and characterful part of the building or a small out-house which is listed by operation of its siting within the curtilage of the main house but is not of any particular historic or architectural merit in itself? 
e)    To what extent has the defendant ignored warnings/pre-application advice from the local authority?
f)    The reversibility of the unauthorised works. To what extent has the defendant sought to make good the harm?
g)    Have the unauthorised works been motivated by financial gain? 

POCA

Following conviction, the Court may make a confiscation order requiring the defendant to pay the sum of money derived from his criminality pursuant to section 6 of the Proceeds of Crime Act 2002. This is potent power which was originally introduced principally to get at the ill-gotten gains of the ‘Mr Big’ of the drugs’ world. It applies to planning offences also. This is likely to prove attractive to local authorities where the offence relates to an unauthorised business use. It brings to mind the unscrupulous defendant who undertook unauthorised works to his listed building in order to facilitate a highly lucrative wedding venue. Post conviction, the local authority may confiscate the profits of the wedding business which relate to the illegal works to the listed building. 

Written by Jack Smyth, member of No5 Chambers Planning and Environment Group

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