An Englishman’s home is his castle. So said Richard Mulcaster, headmaster of Merchant Taylors School who, in his 1581 work on parental discipline, the gloriously titled positions, which are necessary for the training up of children, made the following statement:
“He (the householder) is the appointer of his own circumstance and his house is his castle.”
This is a phrase repeated down the centuries, usually by libertarians, arguing against the power of the state and in favour of the right to do what you want with your own home.
Try telling that to the Conservation Officer that invited herself into my 18th-century cottage and started taking pictures, without permission, recording its condition before I carried out my proposed works! Whilst you might fancy buying a castle, or indeed a more modest slice of this country’s heritage, you will need to get your head round the myriad rules and regulations which apply to the owning and development of historic property.
Your home may be your castle but you certainly aren’t the only ruler of it. And before making it your very own by changing it you will need to ask yourself a number of questions.
First, is it a listed building?
You can find out whether it is listed by going on to the English Heritage website and searching their database. When buying a property, your lawyer will check the position in relation to listing at the local authority, which will show whether or not the property is listed, as weft as the grade of listing. You can shortcut this, by checking on the English Heritage website, which has a useful search function. Not only that, but they have a great database of historic photographs, which are often helpful when trying to work our haw the building was originally configured. Everyone likes a good detective story and you can be your own Time Team.
But beware. his often assumed that the property is listed for particular features and that as long as any works don’t interfere with those features, an owner can do what they want. Wrong. Whilst it may be that those particular features brought about the listing, the legal effect is that the whole of the property is covered by the listing – yes, even those unpleasant modem alterations or extensions.
And contrary to popular belief it is not just the actual building that will be covered. The listing can include other attached structures and fixtures, later extensions or additions and pre-1948 buildings, on land attached to the building. It can also include garden structures.
That catches a lot of people out. I had a recent case where a dry stone retaining wall, in the garden of a cottage, was held to be listed…much to the owner’s surprise.
But there is some small light at the end of the tunnel, There is a whole raft of new legislation, some of it not yet in force, comprised in the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), which makes welcome changes to the Listed Building Regime. In particular, there will be an ability to apply for a certificate of Lawfulness, for proposed works to listed buildings, as well as in relation to existing alterations.
As anyone who has carried out works to a listed building will know, there is often a debate with the Conservation Officer as to what works are ‘like for like’ repairs, not requiring listed building approval and what works do, in fact, require listed building approval, The idea behind this part of the legislation is to try to give clarification and comfort to purchasers.
What grade of lasting does my property have?
English Heritage is the government body responsible for listing. There are, in England alone, approximately 374,081 listed buildings.
There are three grades of listing
- Grade I which relates to buildings of exceptional interest Only 2.5% of listed buildings are Grade I.
- Grade II* which relates to particularly important building& Only 5.5% of listed buildings are Grade II*.
- Grade II buildings, which relates to buildings which are deemed to be nationally important and of special interest; 92% of all listed buildings are in this class and this grade of listing is clearly the most commonly encountered.
- Grade II buildings, which relates to buildings which are deemed to be nationally important and of special interest; 92% of all listed buildings are in this class and this grade of listing is clearly the most commonly encountered,
And it doesn’t end there, There are also 19,717 scheduled ancient monuments, 1,601 registered historic parks and gardens, 9,080 conservation areas. 43 registered historic battlefields, 46 designated wrecks and 17 World Heritage Sites.
Listing: what does the legistation actually say?
The relevant legislation states that,”No person shall execute, or cause to be executed, works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special archaeological or historical interest unless the works are authorised”.
So far so good, but the trouble with this is that different local authorities take different approaches and whilst some take a fairly relaxed view about what may constitute work that would affect a building’s character, others take a more hard-line approach. Every Conservation Officer will use their own judgement and they have power of life and death over your scheme, It is essential therefore to get the local authority ‘on side’ before carrying out any works or indeed making any planning application for listed building consent.
What about conservation areas?
Whilst you are unlikely to have a registered historic battlefield in your garden or indeed on your country estate, you may very well find that although your property is not listed it is situated in what is known as a conservation area. Conservation areas are so common that lawyers often don’t go into a lot of detail about what that means for a purchaser, assuming a knowledge that the average property owner doesn’t have.
Conservation areas first came into being in 1967. They are areas within a locality which are designated for their special architectural and historic interest. Most conservation areas are designated by the local planing authority, but in London English Heritage can designate them after consultation with the relevant Landon Borough Council. And being in a conservation area is a good thing in terms of value – recent research for English Heritage showed that properties in the conservation area increased in value more than properties outside it.
For the average home owner there are three main areas which will be affected by the designation:
- the ability to carry out alterations
- the ability to do work to trees
Unfortunately, there in no ‘one size fits all’ with conservation areas and each planning authority can decide what they regard as important to protect. They do this by issuing what is called an ‘Article 4 direction’ which takes away what would otherwise be automatic rights to develop property. The only way to be certain as to what is allowed or indeed prohibited is to contact the local authority for clarification.
In terms of trees, again there is common belief that any works can be carried out to a tree unless it is subject to what is known as a ‘Tree Preservation Order’. That is not the case. For any cutting down of trees or pruning work in a conservation area, at least six weeks’ notice needs to be given to the local authority. The local authority will then decide whether or not to authorise the works. Carrying out works to protected trees is a criminal offence, so this does need to be taken seriously. And in relation to demolition, this will normally require a separate permission from the local authority.
Historic atlerations; what should you check?
When buying a listed property your professional adviser, whether that is a lawyer or a planning consultant, must make detailed enquiries as to what alterations have been carried out to the property since listing, to ensure that all alterations have been carried out with the necessary consents. Unlike other planning breaches, there it no time limit for enforcement in relation unauthorised alterations carried out to listed buildings, so you need to be absolutely certain that there is no risk of enforcement for alterations carried out before you owned the property. It isn’t always advisable to rely on replies to standard enquiries from the seller. Often, works have been out under the mistaken apprehension that permission was not required. I bought a listed property and discovered that two lots of alterations have been carried out by my (solicitor) seller – someone over the telephone at the local authority had told him that listed building consent was not required for those works. He wasn’t a property lawyer. Never reply on telephone advice for these sorts of things
And sometimes a seller just simply doesn’t have the information, especially where you are buying in a probate or forced sale situation. Detailed records may simply not be available, or the owner really may not know what has happened in the past. In certain cases insurers will need to be obtained by way of comfort in case of future re-enforcement.
Carrying out works yourself
Given that making alterations to a listed building without permission is a criminal offence, it is essential to take specialist advice before you carry out any works to a listed building. Fortunately, as a purchaser of a listed building where unauthorised works have beeb carried out, you will not be deemed to ace commited a criminal offence yourself, but you could still be liable to reinstate the property to its original condition. This could of course be difficult to ascertain and of course very costly. It could also leave you with a property you don’t really want. that lovely little conservatory? The property may not be so attractive without it.
It is also often the case that carrying out works to a listed or historic building will be more expensive than for other properties as there will often be a requirement to carry out those alterations in a way which are sympathetic to the original construction using specialist materials, which may be more costly than cheaper/modern materials.
So, whilst it may be your dream to own a slice of England’s hentage, it’s important that you know you aren’t going to be faced with a battle with the Conservation Officer, the moment you step through the door.