Introduction

The criminal offences created by the Planning (Listed Buildings and Conservation Areas) Act 1990 form a distinct and, in practice, unforgiving regime with planning and criminal law. 

Unlike ordinary planning control, where breach is usually remedied through step of structured enforcement rather than prosecution, unauthorised works to listed buildings tend to result in criminal proceedings because of the perceived public interest in protecting buildings of cultural and historical importance. 

As a result, the law is capable of producing very serious consequences for owners, developers, and professionals who undertake works to protected and listed buildings without the necessary consent.

The statutory framework

A listed building is one included in the statutory list compiled under section 1 of the 1990 Act as being of special architectural or historic interest. 

When a building is listed, section 7 imposes a prohibition on carrying out works for its demolition, alteration, or extension in any manner which would affect its character as a building of special architectural or historic interest, unless listed building consent has been obtained. 

Section 9   creates criminal offence of executing or causing or permitting to be executed such works without consent, or in contravention of the conditions of a consent.

The structure of the regime is relatively simple. The prohibition is in section 7. The criminalisation of breach is in section 9. 

In addition, the Act provides for enforcement notices, temporary stop notices, and listed building enforcement notices, breaches of which can also give rise to criminal liability under other provisions. The focus of this article, however, is the core offence of unauthorised works under sections 7 and 9, which is the charge which I have most frequently encountered in practice.

The offence of unauthorised works to a listed building

Section 9(1) provides that if a person executes or causes or permits to be executed any works which require listed building consent and which are executed without such consent, or otherwise than in accordance with the conditions of a consent, he is guilty of an offence. The offence is triable either way and carries, on indictment, a maximum of two years’ imprisonment or an unlimited fine, or both.

The elements of the offence of unauthorised works to a listed building

The elements the prosecution must establish are:

i)    that the building was listed at the relevant time, 
ii)    that the works carried out fell within the scope of section 7, 
iii)    that the defendant executed, caused, or permitted those works, and t
iv)    hat no listed building consent existed for them, or that the works were not in accordance with the consent granted. 

Consideration of secondary liability is important. Liability under the Act is not limited to the person who physically carries out the works. Owners, developers, landlords, and sometimes professionals may find themselves within the scope of  the clause that relates to ‘causing or permitting’ if they authorise, arrange, or knowingly allow works to proceed. The drafting of this language is deliberately wide, so that liability under the Act not be avoided by delegating the physical work to others.

What counts as demolition, alteration, or extension?

One of the questions that I am asked the most by clients is whether particular works amount to demolition, alteration, or extension affecting character. The leading authority is Shimizu (U.K.) Ltd. v. Westminster City Council (2003) 1 WLR 1509, in which the Court considered whether the removal of internal elements could constitute demolition of part of a listed building. The Court held that “demolition” in the Act refers to the complete demolition of a building, not the removal of part of it, but emphasised that substantial internal works would often fall within alteration and could plainly affect the character of the building. 

Shimzu shows that cannot engage upon a narrow reading of one limb of section 7, because the others will often capture the very same conduct.

Whether works affect the character of the building is ultimately a matter of fact and degree. Courts will often routinely consider expert evidence from conservation officers or heritage specialists. Seemingly modest works, such as replacing windows, removing internal walls, or altering historic fabric, can be enough if they form part of the building’s special interest.

Mental element and strictness of the regime

Section 9 is often described as a quasi strict liability offence. The prosecution isnot required to prove that the defendant knew the building was listed or knew that consent was required in order for an offence to be committed. The basis of the offence is the carrying out, or causing or permitting, of the prohibited works without consent. 

However, the Act does provide a limited statutory defence in section 9(3). As a defendant is not guilty if he proves that he did not know and had no reason to believe that the building was listed, or that the works were such as to require consent. The burden is on the defendant to establish this defence to the civil standard (on the balance of probabilities). In practice this is not easily made out, particularly for owners or professionals who prosecutors would contend are expected to make such enquiries before undertaking works.

Enforcement notices and related offences

The 1990 Act creates further criminal liability in relation to enforcement. Failure to comply with a listed building enforcement notice is an offence. There are also specific provisions relating to unauthorised demolition in conservation areas. These offences are in addition to and not instead of, the section 9 offence, and in some cases additional such charges may be available depending on the enforcement history and the nature of the breach.

Sentencing for listed building offences

There is no dedicated Sentencing Council guideline for listed building offences, but courts consistently treat them as serious. The leading sentencing authority of R v Owadally and Khan [2017] EWHC 1092 (Admin), in which I acted in the Court of Appeal, lays down guidance in respect of considerations and the level of fine that can be expected. 

The harm is not measured simply by the cost of repair, but by the impact on heritage significance and the loss of irreplaceable historic fabric. Aggravating features commonly include deliberate or reckless disregard of the consent regime, financial gain, attempts to conceal the works, and damage that cannot realistically be reversed. Mitigation may include early admission, genuine mistake supported by evidence of due diligence, and prompt remedial works, though remediation will rarely eliminate culpability altogether.

The availability of imprisonment on indictment underlines that these are not merely technical regulatory offences. They are treated as crimes against the public interest in the protection of the historic environment.

Conclusion

Listed building offences under the Planning (Listed Buildings and Conservation Areas) Act 1990 illustrate a legal regime that is harsh to the point of being draconian. The inclusion of ‘causing or permitting’ liability means that responsibility can extend well beyond the person physically carrying out the works, and the limited scope of the statutory defence leaves little room for casual or complacent approaches to historic buildings. If you find yourself under investigation for such an offence or facing prosecution seeking specialist legal advice is recommended. 

Quentin Hunt is a Criminal Defence Barrister who specialises in acting in planning enforcement matters. If you wish to speak to Quentin about your case you may contact him for a free, no obligation conversation about how he could assist in your case. 

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