FORCED ENTRY TO LISTED BUILDINGS
This IHBC Law & Practice Guidance Note discusses the procedures for gaining forced entry to listed buildings where access has been denied. Although these are `last-resort’ powers where uncooperative owners are involved, they may be of particular interest to those dealing with intractable buildings-at-risk. Requirements needing consideration under the Human Rights Act are also covered.
Local planning authorities can gain entry to Listed buildings by force where the owner has refused permission. The powers to do so are set out under Section 88 of the Planning (Listed Buildings & Conservation Areas) Act 1990, and additional powers under Sections 88A and 88B were granted by Schedule 3 of the Planning & Compensation Act 1990. The most likely need to use these provisions is in connection with Urgent Works under Section 54 and full Repair Notices under Section 48, but forced entry may also be gained for the purposes of issuing or serving any order or notice relating to listing, control of works, applications or conditions of consent, appeals or revocations (Sections 1-26 of the Act).
As these powers may sometime be needed in emergency it should hardly be necessary to state that the appropriate officers of the LPA should have delegated authority to seek entry to unoccupied Listed buildings where this cannot be obtained by agreement.
AUTHORITY TO ENTER
In practice, the person duly authorised in writing under Section 88(2) can be any officer of the planning authority, but will usually be the Conservation Officer. Entry requires a Magistrates Warrant. This will usually refer to a named individual (see below) but can also permit entry by any other person authorised in writing by the LPA , including for example, officers from the Valuation Office or a structural engineering consultant. In Greater London the powers extend to English Heritage officers.
Resorting to the use of a Warrant under Section 88 should be seen as a last resort. To convince the Magistrates that forced entry is necessary, the planning authority needs to show what steps have already been taken to gain access by agreement and why these have failed. A short chronology giving dates of letters or meetings and outcomes should be prepared in each case. This process assumes a situation other than an emergency where proof of the urgency (and any refusal) is crucial.
Initially, the LPA should write to the owner suggesting alternative dates and times required for access to the building; making clear the purpose, by whom the inspection would be made and the approximate duration on site. A written reply within a specific period should be required.
Alternatively (or subsequently) several dates and times could be requested convenient to the owner, again requiring a written response. If this fails, an additional letter should then ask if the owner intends to volunteer to open up the building at any stage. If all these options prove `inconvenient’ or `inappropriate’, the LPA could offer other arrangements such as collection and return of the keys etc.
Section 88A (3) states that admission to the land shall be regarded as having been refused if no reply is received within reasonable period. It is therefore essential to request formal written replies from the owner and note refusals or failures to do so. A strict timetable should be adhered to if possible. Negotiations over access should not be allowed to become protracted.
In most cases, it should be possible to determine within three months if access without resorting to a Warrant is going to be agreed. If voluntary access gained quickly it is unlikely to be achieved at all.
A penultimate letter to the owner should explain that a Warrant is to be applied for, but not necessarily when. This avoids a last minute offer to open the building up which may withdrawn on the day. A final letter should state that the Warrant has been obtained and the likely day and time when entry will be made. Under Section 88B(1), twenty-four hours notice must be given to the occupier if the building is occupied. This does not apply if it is vacant.
Although Section 88A (4)(b) states that access shall be at a reasonable hour, the Warrant will not specify a time and the LPA is not duty bound to enter at the time or on the date notified to the owner. The owner cannot, for example sustain objections if entry has been made by the LPA a few minutes prior to the time notified.
PREPARING TO OBTAIN THE WARRANT
Obtaining a Warrant under historic building powers is unusual. A Magistrates Court is more likely to be familiar with, for example, Police Warrants to search for drugs or stolen goods. While the Court will usually refer to Stone’s Justices Manual, this will be unlikely to include the details of Section 88 or the additional powers under Sections 88A and B. It is helpful if photocopies of these Sections are made available to the Court prior to the application being made.
A Warrant can usually be obtained at short notice and the local authority Solicitor can arrange this with the Court officials. The process will usually take 10-15 Minutes in front of a Magistrate.
A formal statement of the kind usually associated with Appeal Proofs of Evidence is not necessary, but a short statement giving the name and position of the officer whose name will appear on the Warrant (i.e. the person authorised to enter the building); the listed grade and date of listing; the brief history of its occupancy and condition and a chronology of attempts to agree voluntary access and the response in each instance. The Magistrate may not require to see this or for it to be read out, but it will be useful aide memoir should any questions be asked during the application.
PREPARING THE INFORMATION
The documentation put before the Court is known as an Information (Section 88A(1). A typical example will be as follows:
The informant, being a duly authorised officer of the local planning authority, Whichever District Council, needs to enter the above premises under Section 88(2) of the Planning (Listed Buildings & Conservation Areas) Act 1990 for the purposes of ascertaining whether the building is being maintained in a proper state of repair [S88(2)(d)] and surveying the building for the purpose of a Repairs Notice (or Urgent Works Notice) under Section 48 (or Section 54) of the Act.
Address.. is a Listed building believed to be in a state of considerable and worsening disrepair; as such it has been a cause of concern to the Council since date. It had been unoccupied since date.
Officers of the Council have sought to obtain entry to the building with the owner’s consent a number of times since date, but entry has bee refused.
The informant now applies to the Court under Section 88A of the Planning (Listed Buildings & Conservation Areas) Act 1990 for a Warrant to enter address on the grounds that:-
Admission to the premises has been refused and that there are reasonable grounds or entering the premises under Section 88 as set out above.
This is the information of: Named Officer, Named Post, Local Planning Authority & Address who states on oath that the facts given above are true.
Taken and sworn before me. Name of Magistrate. Justice of the Peace
FORM OF THE WARRANT
The Warrant will be in a surprisingly simple form and may not necessarily look particularly official in presentation but will be laid out as follows:
Planning (Listed Buildings & Conservation Areas) Act 1990
WARRANT TO ENTER LAND
To: Named Officer, any other specific officer of the LPA, and any other person authorised in writing by Whichever District Council.
Information on oath and in writing has been laid this day by Named Officer, Named Post of Whichever District Council that there are grounds for entering the premises under Section 88 of the Planning (Listed Buildings & Conservation Areas) Act 1990 and that entry has been refused.
YOU ARE HEREBY AUTHORISED TO ENTER ADDRESS BY FORCE IF NECESSARY
Name of Magistrate. Justice of the Peace
It will be necessary for the officer of the LPA to take a short oath and sign the Information which is also signed by the Magistrate and retained by the Court. The Magistrate then signs the Warrant whish is handed to the local authority officer.
Care must be exercised in keeping control of the Warrant. Copies can be made but these must clearly be marked as copies. The Warrant can only be used once after which it must be crossed through to that effect and returned to the Magistrates Court (either directly or via the LPA’s Solicitor).
NOTIFYING THE OWNER
As soon as the Warrant has been obtained, the owner should be notified of the date and time when entry is proposed. It may be sensible to arrange for this to be delivered by hand or by Recorded Delivery. The LPA is not obliged to give the time of entry or to enter at the time stated, but it is sensible to extend this courtesy in an otherwise hostile situation and give the owner the opportunity at the eleventh-hour to open the building voluntarily thus avoiding damage, disruption and delay. Be mindful of the implications of the Humans Rights legislation (see separate section below).
NOTIFYING THE POLICE
At the point at which the Warrant has been obtained, the Police Divisional Inspector should be informed (usually by telephone) of the day and time that entry is proposed. It is a matter of judgement whether a police presence should be requested. This may be considered inflammatory and in many circumstances may not be necessary. Alternatively, it may be essential if the terms of the Warrant are to be executed. If the owner refuses entry to the authorised officers of the LPA, the Police should be called. They will explain to the owner the purpose and power of the Warrant and ensure the owner complies with it.
WORKMEN ON HAND
The LPA should ensure that workmen are on hand from either the Council’s own Works Department or a regular contractor, to effect entry and make the building secure again on exit. They should be briefed in advance about site conditions and access and be at the site in good time. A presence may be necessary for the duration of the visit, or by returning at a fixed time to do the securing, but the officer executing the Warrant should be the last person to leave the site having been satisfied that the building is as secure as at the time of arrival. If the building has been boarded up, it is usually sufficient to re-board in the same way, ensuring that for example doors can still function, letterboxes be used etc. If a new lock is required, the keys should be delivered to the owner on completion of the works.
To avoid arguments about damage to the building, it is sensible to photograph the point of entry beforehand and again on exit when it has again been made secure. Each stage should be photographed. If, for example, upon removing a ply panel from a door, the glass behind is already smashed, this should be photographed. Film is cheap and an accurate record will reduce any grounds for dispute. If damage is done to a door (usually) or window glass to get in and this cannot be made good on the spot, the owner should be informed in writing that this will be corrected/repaired at the earliest reasonable opportunity by the Council at its expense.
It is worth pointing out in passing, that if the building is unoccupied and a door or window is open/missing, enabling unforced entry, prior notification is not necessary provided that it is effectively secured against trespass on exit as it was on entry.
BE WELL EQUIPED AND PLAN AHEAD
Plan ahead. Try to anticipate if the layout of the building might comprise locked or inaccessible inner areas and how access to these might be gained if the owner is not present or is un-cooperative. Think about getting through security bolted doors. Have torch, measuring equipment and a way of communicating with outside help if required.
Always expect the unexpected. If you fail to maximise the opportunity afforded by the Warrant, a new Warrant will have to be obtained and the procedures described here will have to be gone through all over again.
HUMAN RIGHTS CONSIDERATIONS
The Court has an obligation to interpret legislation and give effect to it in a way, which is compatible with Convention Rights under the Human Rights Act (section 3 HRA). Both the Court and Local Authorities are required, by Section 6 of the Act, not to act in a way which is incompatible with convention rights, unless the result of primary legislation is that they could not have acted differently.
The Convention Rights in the Act likely to be applicable in these circumstances are Articles 6 and 8. I do not deal with the Human Rights issues in detail as it is outside the remit of this Advice Note, but be prepared to deal with the human rights issues that may be raised and I have therefore mentioned these, in outline only.
Article 8 states that everyone has the right to respect for his private and family life, his home and his correspondence. This Convention Right is however a ‘qualified right’. Interference with the Convention Right is permissible only if what is done: -
- has its basis in law;
- is necessary in a democratic society which means it must:
- fulfil a pressing social need;
- pursue a legitimate aim;
- be proportionate to the aim being pursued;
- is related to the permissible aim set out in the relevant Convention Right, for example:
- the prevention of crime or
- the protection of public order or health.
On the face of it, forceful entry of domestic premises is a clear breach of this convention right, however, the proposed action has its basis in law because the legislation expressly authorises it. It will be necessary to satisfy the Court of the necessity for the Warrant and that the proposed action is proportionate i.e. the end must justify the means.
Article 6 guarantees the right to a fair trial in the determination of a person’s civil rights and obligations (as well as any criminal charge against him).
Some courts have recently suggested that it will no longer be possible for a warrant application to be dealt with without notice first being given to the person against whom the warrant is sought. In listed building cases it is generally considered to be good practice to notify the person that you are applying for a warrant on a given date and that they should attend Court if they wish to make representations. However, there may be circumstances where notifying the person of the fact that the Council intends to seek a warrant could be detrimental. If so, it may be arguable to claim that there is no civil right being determined so Article 6 does not apply at all. As stated above, you will need to consider this issues in detail and attend Court well prepared.
Bob Kindred MBE BA IHBC MRTPI