Legal Options - The Royalty Harborne

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Legal Options

Alternative Powers to Secure Conservation of Listed Buildings and Other Heritage Assets

A listed building has protection and we are grateful to Historic England for the following information. Unfortunately for the sake of expediency, ignorance or simply lack of funds or indeed will to protect a local building, a vital asset is allowed to decline to the point it is no longer a viable entity.

We have sought protection for property through the process of Judicial review and conversely we have also supported an enlightened developer in front of planning committee. There is always the opportunity to seek a progressive way forward which seeks to meet both parties aspirations.

That is the right way to move forward with the Royalty.

In the meantime though the building must not be allowed to fall into further decline. The following is information taken from the Historic England website indicating what can be done in this respect.

Rights of Entry

Under section 88 of the Listed Buildings Act1990, any person authorised by a local authority may enter land for a number of purposes, including the preparation of Urgent Works Notices and Repairs Notices, the execution of works, to ascertain compliance with a notice and ascertain whether or not a building is being maintained in a proper state of repair. These provisions apply to local authority officers and other individuals engaged in a professional or advisory capacity, which could include architects or engineers. Section 88(5) specifically provides rights of entry for the purposes of valuation.
In the case of occupied buildings, a minimum of 24 hours’ written notice must be given. If required, evidence should be produced of authority to enter and the purpose for which entry is sought should be stated.Wilful prevention of entry is a criminal offence.

WHEN TO USE A SECTION 215 NOTICE

The power for local planning authorities to require proper maintenance of land under Section 215 of the Planning Act1990 is as follows:
‘If it appears to the local planning authority that the amenity of part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice [under Section 215]’

Section 215 is a relatively straightforward power that can achieve imaginative and effective improvements to the quality of the historic environment as an alternative or complementary action to Urgent Works Notices or Repairs Notices. It has a number of potential advantages, which are reflected in its increasing use:

Early consideration of a Section 215 Notice could prevent the need for an Urgent Works Notice

Section 215 Notices used in conjunction with Repairs Notices can ensure complete repair and reordering of the site

Action can be taken against land and buildings and thus it is a useful tool for enabling improvements to both listed and unlisted buildings in conservation areas without any recourse to the Secretary of State

Section 215 can apply to ‘any land’ which includes buildings or open space, whether vacant or occupied, and so can be used on those buildings where Urgent Works Notices could not be served in part or in full

A Section 215 Notice can sometimes address problems outside the scope of Urgent Works Notices or which (if the building is listed) may not be sufficiently extensive to warrant a Repairs Notice. These may include poor external maintenance, broken walls and fences, accumulated rubbish and overgrown gardens.

Section 215 can be applied, unlike Urgent Works Notices and Repairs Notices, to ecclesiastical buildings in use for ecclesiastical purpose, scheduled monuments and registered parks and gardens.

Town and Country Planning Act 1990.
The Town and Country Planning Act1990 Section 215: Best Practice Guidance (ODPM 2005) (www.communities.gov.uk/publications/planningandbuilding/townplanningact) provides detailed guidance and makes it very clear how useful Section 215 Notices can be when dealing with listed buildings at risk. Many of the case studies given in the guidance concern heritage assets. The guidance also includes samples of the letters which should be sent with the notice giving important supplementary information.
The threat of a Section 215 Notice can be enough to persuade the owner to carry out work. Section 215 Notices have a high rate of compliance. It seems very few are actually appealed against and of those that are, only a small proportion are upheld at appeal.
Subject to the owner’s right of appeal, the local planning authority is entitled to carry out the works if the owner fails to comply with the notice, and to reclaim the costs, which are registerable as a local land charge. If the owner appeals, the notice is effectively suspended until the appeal is determined. For this reason, this legislation may not always be the most effective way of securing works which are needed urgently.
The local authority can also prosecute the owner for non-compliance with the notice.


WHEN TO USE A REPAIRS NOTICE

Section 47 of the Listed Buildings Act1990 provides that an appropriate authority or the Secretary of State himself may compulsorily acquire a listed building in need of repair if it appears that reasonable steps are not being taken for its proper preservation. Section 47 is a reserve power which is only to be used to ensure the long-term preservation of a listed building.
Under section 47, there is a two-stage process: (i) service of a repairs notice; and (ii) service of a notice of compulsory acquisition on every owner, lessee and occupier if, after the expiry of two months it appears to the appropriate authority that reasonable steps are not being taken for properly preserving the building.
In accordance with section 48 of the Listed Buildings Act1990, the compulsory purchase of a building under section 47 may not be commenced by the appropriate authority unless at least two months previously the authority has served on the owner of the building the Repairs Notice.The Repairs Notice must specify the works which are reasonably necessary for the proper preservation of the building and explain the effect of sections 47 to 50 of the Listed Buildings Act 1990.
Compensation will be payable to the owner of the building but this is subject to section 50 of the Listed Buildings Act1990, which allows for minimum compensation to be paid where the building has been deliberately allowed to fall into disrepair for the purpose of justifying its demolition.

WHEN TO USE THE POWER OF COMPULSORY PURCHASE

Section 47 of the Listed Buildings Act1990 allows a local authority, English Heritage (in Greater London) or the Secretary of Stateto compulsorily acquire a listed building in need of repair.This power may only be utilised if the owner of the building has been served a Repairs Notice under section 48 of the Listed Buildings Act1990 detailing the works which the authority considers reasonably necessary for the proper preservation of the building and explaining that if the works required by the notice are not carried out, compulsory purchase proceedings may be instigated.The Repairs Notice must be served at least two months before the compulsory purchase is commenced.

If compulsory purchase proceedings are commenced, the Secretary of Statewill not confirm a Compulsory Purchase Order unless he is satisfied that it is expedient to make provision for the preservation of the building and to authorise its compulsory acquisition for that purpose. In accordance with section12 of the Acquisition of Land Act1981, before submitting a CPO to the Secretary of State for confirmation the local authority must serve a notice on every person with an interest in the building specifying (i) the effect of the order; (ii) that it is about to be submitted to the Secretary of Statefor confirmation; and (iii) the time within which objections to the order can be made. Any person having an interest in the building may then apply, within 28 days of service of the notice of the order, to a magistrates’ court for an order staying further proceedings on the CPO on the grounds that reasonable steps have been taken to preserve the building. If the court is satisfied that reasonable steps have been taken for properlypreserving the building, the court shall make an order to stay further proceedings.There is a right of appeal to the Crown Court.

If the local authority does not propose to undertake the repair of the building itself, it will need to identify a suitable end purchaser to acquire the building as quickly as possible after acquisition. The Listed Buildings Act1990 allows for local authorities to ‘make such arrangements as to its management, use or disposal as they consider appropriate for the purpose of its preservation’.The building can thus be passed on to an appropriate end user by whatever method seems most appropriate to secure the building’s future.

The local authority could:

  • enter into a back-to-back agreement with a building preservation trust or similar charitable group, a private restoring owner, or commercial developer
  • purchase the building, carry out works and then lease it back to the original owners
  • purchase the building, carry out repairs and retain it for their own use, sell it, or lease it to a new user or community body through asset transfer.

BACK-TO-BACK AGREEMENTS

A back-to-back agreement is one where the acquiring authority has agreed to sell on the building to a third party, eg private individual, developer or building preservation trust, as soon as it is acquired.

Local authorities have powers, under the Local Government Act1972, to dispose of land in any manner they wish providing that they achieve the best consideration obtainable. The land can only be disposed of at a lower sum with the consent of the Secretary of State.

However, Circular 06/03: Local Government Act1972: General Disposal Consent (England) 2003 gave local authorities much greater freedom to dispose, in certain circumstances, of land at less than the best consideration, without the specific consent of the Secretary of State. Specific consent is not required for a disposal which has a value of less than two million pounds and where the local authority considers disposal will help it to secure the promotion or improvement of the economic, social or environmental wellbeing of its area.

The Secretary of State advises local authorities to obtain a realistic valuation following the advice provided in the Technical Appendix of Circular 06/03.
The repair and reuse of a historic building can meet one or possibly all of these specific circumstances. A local authority is thus able to hand on listed buildings to building preservation trusts or certain other repairing owners at less than the market value. Often this will be at a nominal sum such as one pound.






 
 
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