What is a listed building?

Listed buildings are buildings that are of architectural or historic interest that have legal protection. A listed building has special controls enforced by local planning authorities, meaning a building cannot be demolished, extended, or altered without consent.

Each building is recorded on the National Heritage Listed for England (NHLE), at present there are over 500,000 entries for listed buildings.

How are listed buildings graded?

In England and Wales, listed buildings are classified in three grades:

• Grade I buildings are of exceptional interest, sometimes considered to be internationally important. Just 2.5% of listed buildings are Grade I.
• Grade II* buildings are particularly important buildings of more than special interest. 5.5% of listed buildings are Grade II*.
• Grade II buildings are nationally important and of special interest. 92% of all listed buildings are in this class and it is the most likely grade of listing for a private residential building.

What is required when purchasing a property that is listed?

Listed building consent must be applied for in order to make any changes to that building which might affect its character as a building of special interest.

Listing status applies to the entire building, therefore, listed consent might be required to even replace windows or to commission internal alterations.

In making a decision on all listed building consent applications, the Local Planning Authority must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

The Local Planning Authority is also able to consider other issues, such as the building’s function or condition.

When must purchasers apply for listed building consent?

If the work constitutes a major scheme of repair, or the works will change the character or appearance of the building then listed building consent and planning permission may be required. Both of which should be applied for from your local authority at the same time. If in doubt, ask your local planning authority.

• Demolition - demolition of any part of a listed building, whether or not it is partial or total demolition, will require an application for listed building consent.
• Repairs, extensions and internal and external alterations - should the proposed works change the character or appearance of the external facade, the internal configuration or any historic features (such as staircases, fireplaces, doors and windows, paintwork or decorative mouldings and joinery) then listed building consent will be required. The same follows for objects or structures within the curtilage of listed buildings.
• Removal of internal walls
• Roofing changes
• Re-pointing, painting or rendering of walls
• Changes to external claddings
• Adding rooflights to the building
• Removing fireplaces or chimneys
• Removing staircases, skirtings, panelling, floorboards or plasterwork and removing, adding or altering structural elements of the building (including partitions)

What are the implications of purchasing a listed building? Why purchasers should be careful

Purchasers of listed buildings are, in some circumstances, compelled to repair and maintain them and can face criminal prosecution if they fail to do so or if they perform unauthorised alterations under the Planning (Listed Buildings and Conservation Areas) Act 1990.

It is not a defence to say that the fact that the building was listed was not known. Unauthorised works to a listed building carry a maximum penalty is two years’ imprisonment or an unlimited fine.

In some circumstances, an enforcement notice can be delivered by the Local Planning Authority which could result in any renovations or alterations to the property requiring reversal. It is important to note that these options are not mutually incompatible. Criminal prosecution can be pursued alongside the service of an enforcement notice or injunctive proceedings.

When alterations are permitted, or when listed buildings are repaired or maintained, the owners are often compelled to use specific (and potentially expensive) materials or techniques. This, in turn, increases the cost of insuring the building.

Listing can also limit the options available for significant expansion or improvement for businesses or homes. For these reasons, the law allows owners of listed buildings to object to the listing, and in some cases, buildings may be removed from the listing altogether (although this is rare).

Prospective landlords must also be aware of the implications when leasing a listed building. Historic buildings tend to lend themselves to a variety of residential and commercial uses, such as rented homes, offices, and shops. Usually, all leased commercial properties are required to maintain an Energy Performance Certificate (EPC) rating of E or above. Failure to adhere to the Minimum Energy Efficiency Standard Regulations (MEES) may subject landlords or prospective purchasers to sanctions. However, if the building is listed, an EPC is not required if you can demonstrate that the building is:

• (a) listed or officially protected and the minimum energy performance requirements would unacceptably alter it; or
• (b) the building is temporary and shall only be used for 2 years or less.

It is important for landlords to be careful when leasing their properties to tenants as ultimately, landlords are still subject to the strict regulations, meaning, if any damage is caused by the tenant, the landlord shall still be liable for the expensive repairs and potential convictions if this is not remediated on time.

Landlords must also be aware that when leasing a listed building as a house in multiple occupation (HMO), landlords must hold the relevant listed building consent and planning permission (especially if there are Article 4 Directions in place). The Directions remove permitted development rights and therefore control and restrict the work that can normally carry out without planning permission. Failure to comply with an Article 4 Direction can lead to enforcement action, which is why it is always important to consult your local planning authority before proceeding.

Can vendors face prosecution for not disclosing that a building is listed to prospective purchaser?

The common law principle of caveat emptor (buyer beware) applies, which places the onus on the purchaser to investigate the property it is acquiring and imposes on the vendor a limited duty to disclose latent incumbrances and defects in title.

The contract may provide that the vendor is not liable for any latent defects of which the vendor is not aware or could not reasonably be aware, however it cannot absolve the vendor from liability for non-disclosure of latent defects of which the vendor is or ought reasonably to have been aware.

Even if the vendors failure to disclose is without fault, the purchaser may have a remedy.

Caveat emptor has no application where the purchaser has been induced to enter the contract by fraud (Gordon and another v Selico Co Ltd and another [1986] EGLR 71; Rignall Developments Ltd v Halil [1988] Ch 190; Taylor v Hamer [2002] EWCA Civ 1130).

The Fraud Act 2006 introduced a general criminal offence of fraud that can be committed in three different ways which could be used as a defence by the purchaser:

• Fraud by false representation.
• Fraud by failing to disclose information.
• Fraud by abuse of position.

Conclusion

In order to avoid any potential issues with listed buildings, it is very important for you to carry out a survey and request for your solicitor to commission searches on any property purchase. Your surveyor will be able to assist with finding out which parts are protected which will help you understand what you can and cannot do in terms of renovations to the property.

If unauthorised works were carried out, your solicitor will be able to raise and deal with these issues prior to completion.