House purchase - Listed Building Consents

[Gareth Hughes]

As I understand it, the planners and CO do NOT have a statutory right of access

They do.

 

[88v8]

But in practice things would probably have to be fairly dire before they would exercise it... ?

Most properties were listed on a drive-by basis. No access to the interior, no records thereof.
Which, sadly, is why so many are butchered internally by builders and more recently by insulation zealots.

When/if you sell it, you look vague. Mumble. If a buyer wants it, they will ignore the lack of paperwork, as we did when buying. One is selling a house, not a paperchase.

Ivor

 

[Flyfisher]

As I understand it, the planners and CO do NOT have a statutory right of access

They do.

Even without a court order? Surely they need a reasonable suspicion of some offence being perpetrated?

 

[Flyfisher]

When/if you sell it, you look vague. Mumble. If a buyer wants it, they will ignore the lack of paperwork, as we did when buying. One is selling a house, not a paperchase.

They might want to ignore the lack of paperwork but their conveyancing solicitor might not. Yes, yes, I know that clients are suppose to instruct their solicitors but not everyone is so confident.

A neighbour sold their house and had agreed a price with a buyer who wanted to move quickly. The buyer's solicitor discovered (not difficult, it was in the deeds!) that we had a right to lay a surface water drain across their garden, a right that dated to before their 1980s house was built. In fact, a drain was subsequently laid, but along our lane rather than through their garden and we could foresee no reason to ever exercise our right over their garden in the future, which we told our neighbours, who told their buyer, who was perfectly happy. Unfortunately, it didn't make the solicitors happy, because of various paperwork formalities, and the result was a few weeks delay as solicitor's letters shuttled back and forth until a hard deadline for someone put the whole chain at risk of falling apart. Our poor neighbours nearly had a nervous breakdown and their buyer was furious that their solicitor wouldn't just do as they wanted without question.

Professional responsibility, I suppose, and the risk of a subsequent case of not acting in their client's best interest', or something like that I guess.

Still, no need to use a conveyancing solicitor to buy a house, I hear you say, and quite right too - but that can bring its own risks. My SiL and hubby bought a flat in London many years ago; got a mortgage, made the offer, offer accepted, everything went to completion, they moved in, redecorated and generally settled into their first home together . . . until about six months later they received a letter from their solicitor explaining that there was a 'problem' - the problem being that the seller, apparently, didn't really have the right to sell! It was complicated by being a house being converted into flats and I don't know all the gory details but the result was they had to move out. Fortunately, the solicitor accepted it was their fault (how could they not?!) and their professional insurance paid out full compensation for all losses including an amount for distress etc - so all was well in the end. But just imagine if they had chosen to save a few hundred pounds by relying on a DIY conveyance! :shock:

 

[lucyl123]

Going back to the original question, I think that you need to find out:

(a) When was the building listed?
(b) Is there any work clearly later than that date?
(c) Are there any building control approvals later than the listing date? (Bear in mind that Building Control and Planning (where the CO works) are separate departments and often do not speak to each other!)
(d) Has the CO identified any works as not having LBC?

As I understand it, the planners and CO do NOT have a statutory right of access*, so you need to think about "how will they find out if there is something wrong done by the previous owner?" My CO never visited, for which I am now grateful; I am sure that in my naive state when I started I would have shown them everything but now, I am wiser and would be careful what I let them see if I was doing this again.

I'm not condoning illegality, nor am I a lawyer, but look at the practicality of the issues. If they know about it already, then it needs sorting; if they don't know and can't find out, why worry?

Matthew



* I'm sure one will correct me if that has changed!

I think this is your best bet. Go back to the basics and find out these key details alongside your conservation officer. Have you considered a listed building survey? Might be an extra cost but it can flag some of these key things up (or it might be that the current owner has had a LBS done in the last couple of years). Here's a bit more information about them https://www.ernestbarnesltd.co.uk/historic-building-condition-surveys-oxfordshire/
How long have you got before you need to make a decision about whether you buy the property or not?

 

[Gareth Hughes]

As I understand it, the planners and CO do NOT have a statutory right of access

They do.

Even without a court order? Surely they need a reasonable suspicion of some offence being perpetrated?

https://www.legislation.gov.uk/ukpga/1990/9/section/88

88 Rights of entry.

(1)Any person duly authorised in writing by the Secretary of State may at any reasonable time enter any land for the purpose of surveying any building on it [F1or any other land] in connection with a proposal to include the building in, or exclude it from, a list compiled or approved under section 1.

(2)Any person duly authorised in writing by the Secretary of State, a local planning authority or, where the authorisation relates to a building situated in Greater London, the Commission may at any reasonable time enter any land for any of the following purposes—

(a)surveying it [F2or any other land] in connection with any proposal by the authority or the Secretary of State to make, issue or serve any order or notice under any of the provisions of sections 1 to 26, 38, 40, 46, 54, 55, 60, 68, 75 or 76 or under any order or regulations made under any of them, or any notice under section 48;

(b)ascertaining whether any such order or notice has been complied with [F3in relation to the land or any other land];

(c)ascertaining whether an offence has been, or is being, committed with respect to any building on the land [F4or any other land], under section 9, 11 [F5, 26J] or 43;

(d)ascertaining whether any [F6building on the land or any other land] is being maintained in a proper state of repair.

(3)Any person duly authorised in writing by the Secretary of State, a local authority or, where the authorisation relates to a building situated in Greater London, the Commission may at any reasonable time enter any land for any of the following purposes—

(a)ascertaining whether an offence has been or is being committed under section 59 [F7in relation to the land or any other land];

(b)ascertaining whether any of the functions conferred by section 54 should or may be exercised in connection with the land [F8or any other land]; or

(c)exercising any of those functions in conn ection with the land [F8or any other land].

[F9(3A)Any person duly authorised in writing by a local planning authority in Wales may at any reasonable time enter any land for any of the following purposes—

(a)securing the display of a temporary stop notice (see section 44B);

(b)ascertaining whether a temporary stop notice is being complied with;

(c)considering any claim for compensation under section 44D.]

(4)Any person who is an officer of the Valuation Office or is duly authorised in writing by a local planning authority may at any reasonable time enter any land for the purpose of surveying it, or estimating its value, in connection with a claim for compensation payable by the authority under section F10 . . . 28 [F11, 28B] [F12, 29 or 44D] in respect of any land.

F13(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

[Flyfisher]

That excerpt seems to be all about a person "duly authorised", which is fair enough, but it doesn't explain the authorisation process. Does every CO have a 'blanket' authorisation to use as and when they see fit?

Or must they apply for such authorisation under the provisions of "88A Warrants to enter land" (click on 'next provision' at bottom of linked page)

Also, this act refers mostly to the entry of 'land'. Is this the same as entry to an actual house? Eg, I understand a postman (among others) has a statutory right of entry to any land, but only for the purpose of delivering mail. This right does not (I believe) extend to entering an actual house.


A quick search uncovered these snippets:

Planning officers
A planning officer has the right, without warrant, to enter the land at a reasonable hour to see if there has been a breach of planning control if there are reasonable grounds. It is a criminal offence to obstruct their entry.
https://www.inbrief.co.uk/property-law/who-can-enter-your-house/

A bit confusing this - 'without warrant', fair enough, but only at a reasonable hour and if there are reasonable grounds. Does this imply the homeowner can legally obstruct entry if those 'reasonable grounds' are not provided? And who decides 'reasonable'? I suspect that if there is no agreement on 'reasonable' and the home owner refuses entry then the planning officer would have to leave and seek a formal warrant from the courts.


There is also an extensive code of practice covering the exercise of powers of entry (with or without warrants), so it seems unlikely that a CO would ever simply turn up out of the blue and barge into anyone's house :wink:
https://www.gov.uk/government/publications/powers-of-entry-code-of-practice


Also, there was this back in 2012:
An amendment to the Protection of Freedoms Bill would mean that thousands of social services staff and environmental health officers will no longer be able to go into someone’s home without a warrant, or the home owner's permission.
http://www.telegraph.co.uk/news/politics/9065047/Thousands-of-officials-should-lose-right-to-enter-your-home-without-a-warrant-peers-say.html

This bill was enacted in May 2012 and included "Part 3: Protecting property. This Part repeals a number of existing powers for authorities to enter private property and, interestingly, provides a discretionary power to repeal any power of entry or associated power that a national authority deems inappropriate or unnecessary.
https://www.bindmans.com/insight/updates/the-protection-of-freedoms-act-2012-an-overview


Which all sounds good but it seems that things are moving on slowly on the repeals side of things:
An initial Whitehall review of the 1,300 separate powers on the statute book under which state officials can demand entry has so far led to the repeal of only 15. Those that have been removed include powers dating to the 1950s to enter a home to search and seize German enemy property and to check no illegal hypnotism displays are taking place.
https://www.theguardian.com/politics/2013/jan/22/officials-right-enter-homes-powers


So is an Englishman's home really his castle? :wink:

 

[Gareth Hughes]

My experience was earlier than the the most recent codes of practice, and was a blanket authorisation.
Regardless of the "Englishman's home is his castle" stuff, events last week make me very concerned that the powers are being / have been diluted
http://www.bbc.co.uk/news/uk-england-bristol-41109143

 

[88v8]

This is an egregious example, but the loss of interior features has been rampant. When we were looking for a house, the vast majority of period houses, albeit in a fairly modest price bracket, had already had most if not all of their period interiors erased.
At least with t'internet, we didn't have to travel hundreds of miles to make that discovery.

My perception is that Conservation is low in the overall scheme of Councils' priorities. I guess it doesn't form a major part of Councillor's or MPs' postbags.

Ivor

 

[Flyfisher]

My experience was earlier than the the most recent codes of practice, and was a blanket authorisation.
Regardless of the "Englishman's home is his castle" stuff, events last week make me very concerned that the powers are being / have been diluted
http://www.bbc.co.uk/news/uk-england-bristol-41109143

I agree with your concerns and such vandalism is an awful loss but I can also understand the sentiments against blanket powers - for anything really. I know there's a balance to be had but we've all read about the creeping '1984 society', ubiquitous CCTV surveillance and draconian state powers in the name of 'anti-terrorism', etc. Heck, have you ever had to deal with TV Licencing for (legitimately) not having a TV licence? The harassment is outrageous! Of course, that's one end of the spectrum; the other end is the flouting of well-intentioned laws, leading to the sort of vandalism you've highlighted. As ever, a sensible balance can be hard to find.

I suspect a big part of the problem regarding listed buildings is that it's widely perceived as unfair, or at least all one-sided. Basically, the state dictates that the nation's built heritage is valuable and worthy of protection (and quite right too) but offers very little in way of compensation for the restrictions and addition costs it imposes on private property owners. In short, many people buy a listed property and resent being told what they can do with it. Yes, yes, yes, I know that's 'the deal' with listed buildings and I'm sure everyone on here accepts and supports it, but we're a self-selected sample of enthusiastic owners so I doubt we're representative.

I'd suggest that government missed an opportunity with the changes to the VAT treatment of listed properties a few years ago. Instead of the ludicrous financial incentive to alter listed buildings by making such works zero-rated for VAT, it could have removed that zero rating from alterations and made it applicable to repairs instead. Not only would this provide a financial incentive to keep our listed buildings in good condition, it would been seen as a bit of 'give and take' in the deal between owners and the state - the state giving us a little financial help towards looking after our properties for the benefit of future generations.

 

[MatthewC]

Dear me, my innocent little comment about statutory right of access has revealed a can of worms. hasn't it? 8)

Does anyone remember Richard Stilgoe who wrote a song called "Statutory right of access" (in about 1980)? It listed all the people who do!

 

[Flyfisher]

You mean SIR Richard Stilgoe :wink:

And yes, I remember his segment (on BBC 'Nationwide' I think), complete with state of the art video effects. :lol:

. . . and by the magic of the interweb: https://www.youtube.com/watch?v=UgEgBsiiUGk (48 seconds in)