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Listed building but no LB consent

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  • Listed building but no LB consent

    Hi all,
    I really hope someone legal can help with a pressing and upsetting query we have around listed buildings.

    We bought a terrace house in a late 1800s barn conversion (barn split into 3 houses) about 2 years ago which has a conservatory attached put on by previous owners. The conservatory is really needed as otherwise the living space small and it was a big factor when buying.

    When we bought the house we were not informed by our solicitor or seller that it was potentially a listed building and the solicitors local authority search says 'nothing found' hence we assumed it wasn't listed. The conservatory has planning permission from the council but no listed building consent and no mention on the planning consent certificate of needing this.

    Interestingly and unfortunately speaking to other residents/neighbours in our barn/ development (and then speculatively probing with English Heritage and the council conservation officer) it seems our barn building is definitely described and listed with English Heritage as part of the old farmyard and i have a letter saying it is interpreted by the officer as listed (this was after enquiring around a modification where we carefully didn't refer to our conservatory).
    However there is some confusion with the council records and intial enquiries that i made first said our address wasn't listed which seem to suggest the building description/entity ie.the barn rather than the registered land/address is listed (ie, i think potential land charges registry records don't reflect the fact the barn building as a whole is listed). This would explain why the searches and initial conversation with planning department advised it wasn't listed initially upon first speaking to their planning info desk.
    Anyway -After many hours researching (i can see that the barn had Listed building consent to be converted into 3 houses intially back in the 90s) and assuming the barn is definitely listed...my questions are:

    1) If the land changes register turns out not to mention that our address/land is listed (but it is described in a English Heritage listing as part of the wider farm listing) - is it still legally a 'listed building' from a legal perspective?
    If so then it is then this certainly doesn't seem very fair as no-one would have known from searches it was listed- never-the-less do we assume we are subject to council enforcement to potentially take down our conservatory?

    2) We are expecting attention/a visit from the planning department in relation to a separate matter. If the council twigs the conservatory needs listed consent and decided to send a enforcement notice to take it down, do we get opportunity to place a retrospective listed building consent application or is it then too late to place an application? (We don't really want to place an application now unless we are forced to as theres a reasonable chance they would refuse permission and request the conservatory is taken down now).

    3) If the above happened -which would very seriously devalue our property, how strong a case would we have to sue for compensation? And if so who would we need to pursue sueing- the council or our conveyancing solicitor? We've heard that the council is notoriously difficult to sue in relation to mis-information from searches etc.

    We'd really appreciate some advice and any specialist knowledge anyone has. We are in a horrible scenario and we are very scared of receiving a council letter that would potentially ruin our living space and ruin us financially unless there is something we can do.
    Really appreciate any advice
    Many thanks

  • #2
    1) If the building was listed at the time the conservatory was erected, Listed Building Consent should have been obtained. The fact that the listed status of the building was not disclosed by the search result does not alter that fact, and enforcement action can (I think must - the local authority is obliged to) bring enforcement action if a breach of listed building control comes to its attention. It would be worth checking whether the conservatory was erected before the building was listed - if it was, you have no problem.

    2) If enforcement action is threatened, you can make a retrospective application. If a building is listed, the whole of that building and its curtilage is listed (not just the front), so LBC is needed even for work at the back. However, if it is the front that is of particular significance, the local authority will be more "lenient" in considering an application that relates to the back of the property only

    3) If you suffer loss as a result of an error in an official search result, the council is liable to compensate you. If the search result is an unofficial "personal" one, and the search agent omitted the fact of the listing from the result despite it being on the official register, your recourse is against the search agent, who should be insured against this. In either of these circumstances, I cannot see that your conveyancing solicitor is at fault. If the error is that of an uninsured personal search agent, your solicitor may be liable to some extent if s/he failed to draw to your attention the fact that the search agent was uninsured

    I hope this helps
    This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum


    • #3
      Thanks Justin
      Unfortunately the conservatory was built in 1999 whereas the is a listing for the farmhouse (and it seems curtilage) was recorded in 1951. The Farmhouse listing descripion refers to the barns in passing in the description- 'there are pleast late c19 outbuildings to north and north east'.
      Also there is was LB consent given to convert the barn into houses in 1994 when they were initially developed but this is inccorectly placed under a diffeent house record in the council planning db hence i think it is caused confusion as to which property exactly is listed. None the less we live in the old barn and this therefore seems that we are in breach. Would you agree?

      How difficult and risky to sue a council over failures in searches?
      Do they pay out for the devaluation and compensation for legal fees etc. If it is difficult and problematic we might have to consider moving out of the property to avoid the financial risk of not successfully sueing assuming they twig the breach.
      Thanks for you advice- its really appreciated.


      • #4
        2 other quick questions-
        1) does it make any difference that the conservatory is 10 years old? and 2) does it make any difference that the conservatory was added to the listed building existing structure ie. all original doors, walls, structure remain intact but with the conservatory bolted on?


        • #5
          I agree that there is a breach of listed building control. The fact that 10 years have passed does not stop enforcement action being taken (there is no limitation period for breaches of listed building control) but does make it less likely the council will take aggressive enforcement action, and more likely they will look for a way to grant listed building consent (eg: by accepting that the conservatory at the back does not detract from the frontage and that there have been no alterations to the pre-existing building itself)

          Moving out does not seem to be a viable option - nobody would buy, knowing of the breach of listed building control

          I have never had to sue a council for a defective search result, so cannot comment on that aspect, I'm afraid
          This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum


          • #6
            Thank you for your advice Justin. Really appreciate it


            • #7
              No problem - good luck!
              This is based on my experience as a conveyancing solicitor in England, but I do not accept liability for information I give in this forum