Charles Mynors MRTPI ARICSs Barrister
looks at the Planning and Compensation Act 1991, in search of provisions
relating to listed buildings and conservation areas

I shall revert to the analysis of case law in the next issue by when, it is to be hoped, we shall have had the judgment of the House of Lords in South Lake/and. In the meanwhile, since every other planning journal seems to have been looking at the provisions of the Planning and Compensation Act 1991, I thought that readers of Context might be interested to know what there is in the new Act of specific relevance to listed buildings and conservation areas. The short answer is, sadly, not a great deal.
Changes to the Planning (Listed Buildings and Conservation Areas) Act 1990 are to be found in several places. The principal ones relate to enforcement, and are in Schedule 3 to the 1991 Act. Others, relating to compensation, are in s 31 and Sched 6 to the 1991 Act. Some very minor amendments are in ss 29(2) and 30(2) of and Sched 7 to the Act, and some even less consequential ones are to be found in para 31 of Sched 15. These are here dealt with in turn, together with one or two other provisions which may have some implications for Conservation Officers.

The principal topic dealt with by the new Act was of course enforcement, following the report by Robert Carnwath QC. The first 11 sections of the Act thus make a number of changes to the statutory code providing for the taking of enforcement action in cases of unauthorised development. Schedule 3 to the 1991 Act (introduced by s 24) then applies many but not all of these to the listed building consent regime. By virtue of s 74(3) of the Listed Buildings Act 1990, the changes will also apply to the enforcement of conservation area control. All except the first of them are likely to come into effect towards the end of 1991.
The first change (in Sched 3, para 1), which came into force on 25 September 1991, is that all the maximum penalties for infringement of listed building control have been substantially increased. Thus on conviction in the magistrates’ court the maximum available is now six months imprisonment or £20,000 fine or both; in the Crown Court, two years’ imprisonment or an unlimited fine. Further, the 1991 Act has removed the limitation that, whereas it was permissible in the Crown Court to take into account any gain arising from an offence, it was not in the magis
trates court. These changes will not mean an overnight doubling in the penalties actually obtained; but they will be a significant indication to magistrates and juries that listed buildings offences are serious. Taken together, they will also mean that it will less often be necessary to insist on a Crown Court trial. That in turn should speed up the whole process.
The second group of changes (in paras 2 to 9 and 18 to 29 of Sched 3 to the 1991 Act) relates to enforcement notices. It will now be possible to specify different time limits within which the various requirements of a notice are to be carried out [para 19, modifying P(LDCA)A s38(2)-(4)), and to waive or relax one or more such requirements without having to withdraw the whole notice [para 2, modifying s 38(5),(6)]. Grounds (b) and (c) on which an appeal can be made against a notice have been swapped round, and the wording of those grounds and of the time limits for lodging an appeal have been tightened up (para 3, modifying s 39). A news 43, relating to non-compliance with a listed building enforcement notice, is substituted by Sched 3, para 6. The penalties are increased, in line with those for unauthorised works (see above); and the position relating to continuing non-compliance is clarified. A new offence has been created, of obstructing an authority carrying out the works required by a notice (new s 42(6), inserted by para 51. The power to recover the cost of such works in a county court as a civil debt still exists, but it is now in s 16 of the County Courts Act 1968, rather than s 5 5(6) of the P(LBCA)A
Thirdly, an application to the High Court or the Court of Appeal to quash the decision of the Secretary of State on an appeal against a listed building enforcement notice can now only be brought with the leave of the court [P(LBCA)A 1990, s 65(5), inserted by para 81. The court on such an application may order that the notice remains in force pending the final determination of the proceedings; but such an order may be on the condition that the authority gives an undertaking on damages [new s 65(3A)). This should eliminate some unmeritorious legal challenges.

There has not for some time been any doubt as to the powers of a local authority
to serve an injunction to restrain a breach of listed building control. This is however now made explicit in a new s 44A, inserted into the 1990 Act by para 7. This new power extends to English Heritage, and to local planning authorities which are not district or county councils such as development corporations which did not have them previously see LDDC v Rank Hovis McDougall [19861 JPL 826. Authorities should be much more willing than they have been hitherto to seek an injunction; it will often be the most effective way (and Sometimes the only way) of bringing to an immediate halt uriauthorised works.

The rights to enter land to see whether a building should be listed, or to discover whether an offence is being committed are now extended to cover investigation relating to buildings on land other than the land being entered [P(LBCA)A 1990, s 88, amended by Sched 3, para 9(1)]. Further provisions relating to rights of entry, and the requirements for a warrant to be obtained, are contained in new ss 88A and 88B, inserted into the 1990 Act by para

In spite of the above amendments, however, one or two anomalies remain. Why, for example, is there no requirement to maintain a register of listed building enforcement notices? Why is there no requirement that a listed building enforcement notice should be accompanied by a statement setting out the rights of the recipient to appeal against it to the Secretary of State? And there is still no power, analogous to a stop notice, to bring to an immediate halt unauthorised works to a listed building. The use of an injunction will therefore remain the only option in such circumstances. This seems illogical, since the effect of such works frequently cannot be repaired satisfactorily, and an injunction may sometimes be perceived to be a rather extreme remedy.
Secondly, there is no procedure similar to either the old s 53 determination, or the new CLOPUDs and CLEUDs introduced by the 1991 Act to enable anyone to obtain a formal determination of whether listed building consent is neces