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


M’LEARNED FRIEND
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 Compensa-
tion 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 Build-
ings 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, relat-
ing 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 implica-
tions for Conservation Officers.

ENFORCEMENT
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 develop-
ment. Schedule 3 to the 1991 Act (intro-
duced 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 con-
servation 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’ imprison-
ment 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 sig-
nificant 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 require-
ments 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 require-
ments 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, relat-
ing to non-compliance with a listed build-
ing enforcement notice, is substituted by
Sched 3, para 6. The penalties are
increased, in line with those for unautho-
rised 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
1990.
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 enforce-
ment 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.

INJUNCTIONS
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, insert-
ed 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 effec-
tive way (and Sometimes the only way) of
bringing to an immediate halt uriautho-
rised works.

RIGHTS OF ENTRY
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)]. Fur-
ther 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
9(2).

ENFORCEMENT: OUTSTANDING
PROBLEMS
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 enforce-
ment notice should be accompanied by a
statement setting out the rights of the
recipient to appeal against it to the Secre-
tary 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 simi-
lar to either the old s 53 determination, or
the new CLOPUDs and CLEUDs intro-
duced by the 1991 Act to enable any-
one to obtain a formal determination of
whether listed building consent is neces-
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