Historic Environment (Wales) Act 2023

Prospective

CHAPTER 4 E+W ENFORCEMENT OF CONTROLS RELATING TO LISTED BUILDINGS

Unauthorised works and intentional damage: offences E+W

117 Offence of carrying out unauthorised works or breaching condition of consent E+W

(1) A person commits an offence if the person carries out, or causes to be carried out, works in relation to a listed building in breach of section 88 (requirement for works to be authorised).

(2) A person also commits an offence if the person—

(a) carries out, or causes to be carried out, works in relation to a listed building, and

(b) fails to comply with a condition subject to which listed building consent has been granted for the works.

(3) Subsection (2) does not limit what may be an offence under subsection (1).

(4) In proceedings against a person for an offence under this section, it is a defence for the person to prove that—

(a) works were urgently necessary in the interests of safety or health or for the preservation of the building,

(b) it was not practicable to secure safety or health or the preservation of the building by carrying out works of repair or works to provide temporary support or shelter,

(c) the works carried out were limited to the minimum measures immediately necessary, and

(d) notice in writing justifying in detail the carrying out of the works was given to the planning authority in whose area the building is or was situated as soon as reasonably practicable.

(5) In proceedings against a person for an offence under this section in relation to a building on which interim protection is conferred—

(a) it is a defence for the person to prove that the person did not know, and could not reasonably have been expected to know, that the interim protection had been conferred, and

(b) where the defence is raised by a person on whom a notice should have been served under section 78(1), it is for the prosecution to prove that the notice was served on the person.

(6) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine or imprisonment for a term not exceeding the applicable limit under section 224(1A)(b) of the Sentencing Code, or both;

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years, or both.

(7) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

Commencement Information

I1 S. 117 not in force at Royal Assent, see s. 212(2)

118 Offence of intentionally damaging listed building E+W

(1) A person commits an offence if, with the intention of causing damage to a listed building, the person does anything or permits anything to be done—

(a) which causes or is likely to result in damage to the building, and

(b) which the person would be entitled to do or permit were it not for this subsection.

(2) Subsection (1) does not apply to—

(a) works for which listed building consent has been granted;

(b) anything done in relation to a scheduled monument (but see section 58);

(c) works in relation to an exempt religious building;

(d) anything authorised by planning permission granted or treated as having been granted on an application under the Town and Country Planning Act 1990 (c. 8);

(e) anything for which development consent has been granted under the Planning Act 2008 (c. 29).

(3) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) If a person convicted of an offence under subsection (1) fails to take any reasonable steps that are necessary to prevent damage or further damage resulting from the offence, the person is guilty of a further offence.

(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding one tenth of level 3 on the standard scale for each day on which the failure continues.

Commencement Information

I2 S. 118 not in force at Royal Assent, see s. 212(2)

Temporary stop notices E+W

119 Power of planning authority to issue temporary stop notice E+W

(1) A planning authority may issue a temporary stop notice if it considers—

(a) that works have been or are being carried out in relation to a listed building in its area which involve a breach of section 88 (requirement for works to be authorised) or of a condition subject to which listed building consent has been granted, and

(b) that the works (or any of them) ought to be stopped immediately, having regard to their effect on the character of the building as one of special architectural or historic interest.

(2) A temporary stop notice must—

(a) specify the works to which it relates,

(b) prohibit the carrying out of the works (or any of them specified in the notice),

(c) set out the authority’s reasons for issuing the notice, and

(d) state the effect of section 121 (offence of breaching temporary stop notice).

(3) The planning authority must display a copy of the temporary stop notice on the listed building to which it relates; and the copy must specify the date on which it is first displayed.

(4) But if—

(a) it is not reasonably practicable to display a copy of the notice on the building, or

(b) the authority considers that displaying a copy of the notice on the building might damage it,

the authority may instead display a copy in a prominent place as near to the building as is reasonably practicable.

(5) The authority may serve a copy of the notice on any person the authority considers—

(a) to be carrying out the works that the notice prohibits or causing or permitting them to be carried out,

(b) to be an occupier of the listed building to which the notice relates, or

(c) to have an interest in the building.

(6) A temporary stop notice may not prohibit the carrying out of works of a description, or in circumstances, specified in regulations made by the Welsh Ministers.

Commencement Information

I3 S. 119 not in force at Royal Assent, see s. 212(2)

120 Duration etc. of temporary stop notice E+W

(1) A temporary stop notice takes effect when a copy of it is first displayed in accordance with section 119.

(2) A temporary stop notice ceases to have effect—

(a) at the end of 28 days beginning with the day the copy of it is first displayed in accordance with section 119, or

(b) if it specifies a shorter period beginning with that day, at the end of that period.

(3) But if the planning authority withdraws the notice before the end of the period for which it would otherwise have effect, the notice ceases to have effect when it is withdrawn.

(4) A planning authority may not issue a second or subsequent temporary stop notice in relation to the same works unless the authority has, since issuing the previous notice, taken other enforcement action in relation to the breach referred to in section 119(1)(a).

(5) In subsection (4) the reference to taking other enforcement action is a reference to—

(a) issuing an enforcement notice under section 123, or

(b) obtaining an injunction under section 135.

Commencement Information

I4 S. 120 not in force at Royal Assent, see s. 212(2)

121 Offence of breaching temporary stop notice E+W

(1) A person commits an offence if, at any time when a temporary stop notice has effect, the person carries out works prohibited by the notice or causes or permits such works to be carried out.

(2) A person may be charged with an offence under this section by reference to a day or a longer period, and may be convicted of more than one offence in relation to the same temporary stop notice by reference to different periods.

(3) In proceedings against a person for an offence under this section, it is a defence for the person to prove that the person did not know, and could not reasonably have been expected to know, of the existence of the temporary stop notice.

(4) In proceedings for an offence under this section, it is a defence to prove that—

(a) works to the listed building were urgently necessary in the interests of safety or health or for the preservation of the building,

(b) it was not practicable to secure safety or health or the preservation of the building by carrying out works of repair or works to provide temporary support or shelter,

(c) the works carried out were limited to the minimum measures immediately necessary, and

(d) notice in writing justifying in detail the carrying out of the works was given to the planning authority in whose area the building is or was situated as soon as reasonably practicable.

(5) A person guilty of an offence under this section is liable on summary conviction, or on conviction on indictment, to a fine.

(6) In determining the amount of the fine, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

Commencement Information

I5 S. 121 not in force at Royal Assent, see s. 212(2)

122 Compensation for loss or damage caused by temporary stop notice E+W

(1) This section applies where—

(a) the works specified in a temporary stop notice do not, at the time the notice takes effect, involve a breach of section 88 (requirement for works to be authorised) or of a condition subject to which listed building consent has been granted, or

(b) a planning authority withdraws a temporary stop notice after it has taken effect.

(2) This section does not apply by virtue of subsection (1)(b) where—

(a) listed building consent is granted for the works specified in the temporary stop notice after the notice has taken effect, and

(b) the planning authority withdraws the notice after the grant of that consent.

(3) Any person who has an interest in the listed building to which the notice relates‍ at the time the notice takes effect is entitled, on making a claim to the planning authority, to be paid compensation by the authority for any loss or damage suffered by the person that is directly attributable to the effect of the notice.

(4) The loss or damage for which compensation is payable includes any amount payable by the claimant in respect of a breach of contract caused by taking action necessary to comply with the notice.

(5) No compensation is payable under this section for loss or damage that the claimant could have avoided by—

(a) providing information that the claimant was required to provide by a notice served by the planning authority under section 197 of this Act or section 16 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57), or

(b) co-operating with the planning authority in any other way when responding to such a notice.

(6) A claim for compensation under this section must be made in writing within 6 months beginning—

(a) in a case falling within subsection (1)(a) but not within subsection (1)(b), with the day the temporary stop notice takes effect;

(b) in a case falling within subsection (1)(b), with the day the notice is withdrawn.

Commencement Information

I6 S. 122 not in force at Royal Assent, see s. 212(2)

Enforcement notices issued by planning authorities E+W

123 Power of planning authority to issue enforcement notice E+W

(1) A planning authority may issue an enforcement notice if it considers—

(a) that works which involve a breach of section 88 (requirement for works to be authorised) or of a condition subject to which listed building consent has been granted have been or are being carried out in relation to a listed building in its area, and

(b) that it is appropriate to issue the notice, having regard to the effect of the works on the character of the building as a building of special architectural or historic interest.

(2) An enforcement notice must—

(a) specify the alleged breach, and

(b) require steps specified in the notice to be taken for one or more of the purposes set out in subsection (3).

(3) The purposes are—

(a) restoring the listed building to its condition before the breach took place,

(b) if the planning authority considers that restoration would not be reasonably practicable or would be undesirable, carrying out further works to alleviate the effect of the breach, or

(c) putting the building in the condition it would have been in if the terms of any listed building consent for the works to which the notice relates (including any conditions attached to the consent) had been complied with.

(4) Where an enforcement notice imposes a requirement under subsection (3)(b), listed building consent is to be treated as having been granted for any works carried out in compliance with the requirement.

Commencement Information

I7 S. 123 not in force at Royal Assent, see s. 212(2)

124 Service and taking effect of enforcement notice E+W

(1) An enforcement notice must specify—

(a) the date on which it is to take effect, and

(b) the period within which the steps specified in it must be taken.

(2) The notice takes effect at the beginning of the day specified under subsection (1)(a); but where an appeal is made against the notice under section 127, this is subject to sections 127(4)(a) and 184(5).

(3) An enforcement notice may specify different periods for taking different steps.

(4) Where a planning authority issues an enforcement notice, it must serve a copy of the notice on—

(a) every owner and occupier of the listed building to which the notice relates, and

(b) any other person who has an interest in the building which the authority considers to be materially affected by the notice.

(5) Each copy of the notice must be served—

(a) before the end of 28 days after the day the notice is issued, and

(b) at least 28 days before the date specified in the notice as the date on which it is to take effect.

Commencement Information

I8 S. 124 not in force at Royal Assent, see s. 212(2)

125 Variation and withdrawal of enforcement notice E+W

(1) Where a planning authority has issued an enforcement notice, it may—

(a) withdraw the notice;

(b) waive or relax any requirement of the notice, and in particular extend the period within which the notice requires any step to be taken.

(2) The authority may exercise the powers in subsection (1) whether or not the notice has taken effect.

(3) The withdrawal of an enforcement notice does not prevent the planning authority from issuing another enforcement notice.

(4) Subsection (5) applies where the planning authority had served copies of the enforcement notice under section 124(4) before exercising the powers in subsection (1).

(5) Immediately after exercising any of those powers, the authority must give notice that it has done so to every person who was served with a copy of the enforcement notice (or who would be served with a copy of the notice if it were reissued).

Commencement Information

I9 S. 125 not in force at Royal Assent, see s. 212(2)

126 Effect of granting listed building consent on enforcement notice E+W

(1) This section applies if, after an enforcement notice has been issued, listed building consent is granted under section 89(2)—

(a) authorising any works to which the notice relates that have been carried out in breach of section 88, or

(b) authorising works which involve a breach of a condition subject to which a previous consent was granted.

(2) The notice ceases to have effect (or does not take effect) so far as it—

(a) requires steps to be taken that are inconsistent with the authorisation of the works, or

(b) requires steps to be taken for complying with the condition.

(3) The fact that an enforcement notice has wholly or partly ceased to have effect by virtue of this section does not affect the liability of any person for an offence in respect of a previous failure to comply with the notice (see section 133).

Commencement Information

I10 S. 126 not in force at Royal Assent, see s. 212(2)

Appeals and other proceedings relating to enforcement notices E+W

127 Right to appeal against enforcement notice E+W

(1) The following persons may appeal to the Welsh Ministers against an enforcement notice (whether or not a copy of the notice has been served on them)—

(a) any person who has an interest in the listed building to which the notice relates;

(b) any person who by virtue of a licence—

(i) occupies the building on the day the notice is issued, and

(ii) continues to occupy it when the appeal is made.

(2) An appeal may be made on one or more of the following grounds—

(a) that the building is not of special architectural or historic interest;

(b) that the matters alleged to constitute a breach of section 88 or of a condition of listed building consent have not occurred;

(c) that those matters (if they occurred) do not constitute such a breach;

(d) that the following conditions are met—

(i) works to the building were urgently necessary in the interests of safety or health or for the preservation of the building,

(ii) it was not practicable to secure safety or health or the preservation of the building by carrying out works of repair or works to provide temporary support or shelter, and

(iii) the works carried out were limited to the minimum measures immediately necessary;

(e) that listed building consent ought to be granted for the works to which the notice relates, or that any relevant condition of listed building consent which has been granted for the works ought to be removed or replaced with different conditions;

(f) that a copy of the notice was not served on a person as required by section 124;

(g) that steps which the notice requires under section 123(3)(a) would not serve the purpose of restoring the character of the building;

(h) that steps which the notice requires for any of the purposes set out in section 123(3) exceed what is necessary for the purpose in question;

(i) that the period within which the notice requires any step to be taken is unreasonably short.

(3) An appeal must be made by—

(a) serving a notice of appeal on the Welsh Ministers before the date specified in the enforcement notice as the date on which it is to take effect,

(b) sending a notice of appeal to the Welsh Ministers in a properly addressed and pre-paid letter posted to them at a time when, in the ordinary course of post, it would be delivered to them before that date, or

(c) sending a notice of appeal to the Welsh Ministers using electronic communications at a time when, in the ordinary course of transmission, it would be delivered to them before that date.

(4) Where an appeal is made—

(a) the enforcement notice has no effect until the appeal is finally determined or withdrawn; but this is subject to any order under section 184(5);

(b) neither the appellant nor any other person is entitled, in any other proceedings started after the making of the appeal, to claim that the enforcement notice was not served on the appellant in accordance with section 124.

(5) An appellant must submit to the Welsh Ministers a statement in writing containing information required by regulations made by the Welsh Ministers.

(6) The appellant must submit the statement either—

(a) with the notice of appeal, or

(b) within the period specified in regulations made by the Welsh Ministers.

(7) Where an appeal is made on more than one ground, if the appellant fails to give information required under subsection (5) in relation to a ground within the period specified under subsection (6)(b), the Welsh Ministers may determine the appeal without considering that ground.

(8) Chapter 2 of Part 5 makes provision about the procedure for the consideration of appeals under this section (including provision for them to be determined by persons appointed by the Welsh Ministers).

Commencement Information

I11 S. 127 not in force at Royal Assent, see s. 212(2)

128 Determination of appeal E+W

(1) On an appeal under section 127, the Welsh Ministers may—

(a) correct any defect, error or misdescription in the enforcement notice to which the appeal relates, or

(b) vary the terms of the notice,

if they are satisfied that the correction or variation will not cause injustice to the appellant or the planning authority.

(2) Where the Welsh Ministers determine an appeal—

(a) if they allow the appeal, they may quash the enforcement notice;

(b) they must give any directions necessary to give effect to their determination.

(3) On the determination of an appeal the Welsh Ministers may—

(a) grant listed building consent for any of the works to which the enforcement notice relates;

(b) remove any condition subject to which listed building consent was granted and replace it with any other condition, whether more or less onerous;

(c) exercise their power under section 76 to de-list the building to which the appeal relates.

(4) Where it would otherwise be a ground for determining to allow an appeal that a copy of the enforcement notice was not served on a person who was required to be served, the Welsh Ministers may ignore that fact if neither the appellant nor that person has been substantially prejudiced by the failure.

(5) The Welsh Ministers may—

(a) dismiss an appeal if the appellant fails to comply with section 127(6);

(b) allow an appeal and quash the enforcement notice if the planning authority fails, within the period specified in regulations made under section 175, to comply with a requirement of the regulations to—

(i) submit a statement of the representations the authority proposes to make on the appeal which includes the matters specified in the regulations, or

(ii) send the Welsh Ministers a copy of the enforcement notice and a list of the persons on whom copies of it were served.

(6) The decision of the Welsh Ministers on the appeal (including any decision relating to the exercise of the powers conferred by subsection (3)) is final.

Commencement Information

I12 S. 128 not in force at Royal Assent, see s. 212(2)

129 Grounds for appeal not to be raised in other proceedings E+W

The validity of an enforcement notice may not be questioned, on any of the grounds on which an appeal may be made under section 127, in any proceedings except an appeal under that section.

Commencement Information

I13 S. 129 not in force at Royal Assent, see s. 212(2)

Compliance with enforcement notices E+W

130 Order to permit steps required by enforcement notice E+W

(1) An owner of land may apply by way of complaint to a magistrates’ court for an order requiring another person who has an interest in the land to permit the owner to take steps required by an enforcement notice.

(2) The court may make such an order if it is satisfied that the other person is preventing the owner from taking steps required by the enforcement notice.

Commencement Information

I14 S. 130 not in force at Royal Assent, see s. 212(2)

131 Power to enter land and take steps required by enforcement notice E+W

(1) If the period within which an enforcement notice requires any step to be taken has ended and the step has not been taken, the planning authority that issued the notice may at any reasonable time enter the land to which the notice relates and take the step.

(2) A person who intentionally obstructs a person exercising a power under subsection (1) commits an offence.

(3) A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) This section does not apply in relation to Crown land.

Commencement Information

I15 S. 131 not in force at Royal Assent, see s. 212(2)

132 Recovery of costs of compliance with enforcement notice E+W

(1) Where a planning authority exercises the powers under section 131(1) to enter land and take a step required by an enforcement notice, the authority may recover from a person who is then an owner of the land the costs it reasonably incurs in doing so.

(2) If a planning authority seeks to recover costs under subsection (1) from an owner of land who—

(a) is entitled to receive the rack rent of the land merely as agent or trustee for another person (the “principal”), and

(b) does not have, and has not had at any time since the day payment of the costs was demanded, enough money on behalf of the principal to pay the costs in full,

the liability of the agent or trustee is limited to the total amount of money that the agent or trustee has had on behalf of the principal since that day.

(3) If subsection (2) prevents a planning authority recovering the whole of its costs from an agent or trustee, it may recover them from the principal, or partly from the principal and partly from the agent or trustee.

(4) Where a copy of an enforcement notice has been served in respect of a listed building—

(a) costs which an owner or occupier of the building incurs for the purpose of complying with the notice, and

(b) amounts which an owner of land pays under subsection (1) in respect of costs incurred by the planning authority in taking steps required by the notice,

are to be treated as incurred or paid for the use and at the request of the person who carried out the works to which the notice relates.

(5) The costs recoverable by a planning authority under subsection (1) are, until recovered, a charge on the land to which the enforcement notice relates.

(6) The charge takes effect as a local land charge at the beginning of the day after the day the authority completes the step to which the costs relate.

(7) Subsection (8) applies where—

(a) a planning authority removes materials from land in the course of taking steps required by an enforcement notice, and

(b) the owner of the materials does not, within 3 days after the day they are removed, claim the materials and take them away.

(8) The planning authority—

(a) may sell the materials, and

(b) if it does so, must pay the proceeds to the person who owned the materials, after deducting any costs recoverable by it from the person.

(9) A planning authority may not recover costs under this section from the Crown.

Commencement Information

I16 S. 132 not in force at Royal Assent, see s. 212(2)

133 Offence of failing to comply with enforcement notice E+W

(1) Where, at any time after the end of the period within which an enforcement notice requires any step to be taken, the step has not been taken, a person who is at that time an owner of the listed building to which the notice relates is guilty of an offence.

(2) A person may be charged with an offence under this section by reference to a day or a longer period, and may be convicted of more than one offence in relation to the same enforcement notice by reference to different periods.

(3) In proceedings against a person for an offence under this section, it is a defence for the person to prove—

(a) that the person did everything the person could be expected to do to secure that the steps required by the notice were taken, or

(b) that the person was not served with a copy of the enforcement notice and was not aware of its existence.

(4) A person guilty of an offence under this section is liable on summary conviction, or on conviction on indictment, to a fine.

(5) In determining the amount of the fine, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

Commencement Information

I17 S. 133 not in force at Royal Assent, see s. 212(2)

Enforcement notices issued by Welsh Ministers E+W

134 Power of Welsh Ministers to issue enforcement notice E+W

(1) The Welsh Ministers may issue an enforcement notice if they consider—

(a) that works which involve a breach of section 88 (requirement for works to be authorised) or of a condition subject to which listed building consent has been granted have been or are being carried out in relation to a listed building, and

(b) that it is appropriate to issue the notice, having regard to the effect of the works on the character of the building as a building of special architectural or historic interest.

(2) Before issuing the notice, the Welsh Ministers must consult the planning authority in whose area the building is situated.

(3) An enforcement notice issued by the Welsh Ministers has the same effect as one issued by a planning authority.

(4) Sections 123 to 132 apply in relation to an enforcement notice issued by the Welsh Ministers as if references to a planning authority were references to the Welsh Ministers.

Commencement Information

I18 S. 134 not in force at Royal Assent, see s. 212(2)

Injunctions E+W

135 Injunction to restrain unauthorised works or failure to comply with condition of consent E+W

(1) A planning authority may apply to the High Court or the county court for an injunction restraining—

(a) an actual or expected breach of section 88 (requirement for works to be authorised) in relation to a listed building in its area, or

(b) an actual or expected failure to comply with a condition of listed building consent for works to a listed building in its area.

(2) An authority may make an application whether or not it has exercised or is proposing to exercise any of its other powers under this Part.

(3) The court may grant an injunction on any terms it considers appropriate for the purpose of restraining the breach.

(4) Rules of court may provide for an injunction to be issued against a person whose identity is unknown.

(5) An injunction may not be issued under this section against the Crown.

Commencement Information

I19 S. 135 not in force at Royal Assent, see s. 212(2)