Office of Public Sector Information
PART I continued CHAPTER II continued
(4) Where the Secretary of State proposes to make such an order he shall serve notice on—
(a) the owner of the building affected,
(b) the lessee of that building,
(c) the occupier of that building, and
(d) any other person who in his opinion will be affected by the order.
(5) The notice shall specify the period (which must not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(6) If within that period a person on whom the notice is served so requires, the Secretary of State shall, before he makes the order, give such an opportunity both to that person and to the planning authority.
(7) The power conferred by this section to revoke or modify listed building consent in respect of any works may be exercised at any time before those works have been completed, but the revocation or modification shall not affect so much of those works as has been previously carried out.
(8) An order under this section shall have the same effect as if it had been made by the planning authority under section 21 and confirmed by the Secretary of State under section 22.
(1) This section shall have effect where listed building consent is revoked or modified by an order under section 21 (other than an order which takes effect by virtue of section 23).
(2) If, on a claim made to the planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the building—
(a) has incurred expenditure in carrying out works which are rendered abortive by the revocation or modification, or
(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification,
the authority shall pay to that person compensation in respect of that expenditure, loss or damage.
(3) Subject to subsection (4), no compensation shall be paid under this section in respect of—
(a) any works carried out before the grant of the listed building consent which is revoked or modified, or
(b) any other loss or damage (not being loss or damage consisting of depreciation of the value of an interest in land) arising out of anything done or omitted to be done before the grant of that consent.
(4) For the purposes of this section, expenditure incurred in the preparation of plans for the purposes of any works, or upon other similar matters preparatory to any works, shall be taken to be included in the expenditure incurred in carrying out those works.
(1) This section applies where a building preservation notice ceases to have effect without the building having been included in a list compiled or approved by the Secretary of State under section 1.
(2) Any person who at the time when the notice was served had an interest in the building shall, on making a claim to the planning authority within the prescribed time and in the prescribed manner, be entitled to be paid compensation by the authority in respect of any loss or damage directly attributable to the effect of the notice.
(3) The loss or damage in respect of which compensation is payable under subsection (2) shall include a sum payable in respect of any breach of contract caused by the necessity of discontinuing or countermanding any works to the building on account of the building preservation notice being in force with respect to it.
(1) For the purpose of assessing any compensation to which this section applies, the rules set out in section 12 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963 shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.
(2) This section applies to any compensation which is payable under section 25 or 26 in respect of depreciation of the value of an interest in land.
(3) Where an interest in land is subject to a heritable security—
(a) any compensation to which this section applies which is payable in respect of depreciation of the value of that interest, shall be assessed as if the interest were not subject to the security,
(b) a claim for any such compensation may be made by any creditor in a heritable security over the interest, but without prejudice to the making of a claim by the person entitled to the interest,
(c) no compensation to which this section applies shall be payable in respect of the interest of the creditor in the heritable security (as distinct from the interest which is subject to the security), and
(d) any compensation to which this section applies which is payable in respect of the interest which is subject to the heritable security shall be paid to the creditor in the security or, if there is more than one such creditor, to the creditor whose security ranks first, and shall in either case be applied by him as if it were proceeds of sale by him under the powers competent to creditors in heritable securities.
(4) Except in so far as may be otherwise provided by any regulations made under this Act, any question of disputed compensation under section 25 or 26 shall be referred to and determined by the Lands Tribunal.
(5) In relation to the determination of any such question, the provisions of sections 9 and 11 of the [1963 c. 51.] Land Compensation (Scotland) Act 1963 shall apply, subject to any necessary modifications and to the provisions of any regulations made under this Act.
(1) Where—
(a) listed building consent in respect of a building is refused or is granted subject to conditions, or is revoked or modified by an order under section 21 or 24, and
(b) any owner or lessee of the building claims that—
(i) the conditions mentioned in subsection (2) are satisfied with respect to it and any land comprising the building, or contiguous or adjacent to it, and owned or occupied with it, and
(ii) the conditions mentioned in subsection (3) are satisfied with respect to that land,
he may, within the prescribed time and in the prescribed manner, serve on the planning authority in whose district the building and land is situated a notice (in this Act referred to as a “listed building purchase notice”) requiring that authority to purchase his interest in the building and the land in accordance with sections 29 to 33.
(2) The conditions mentioned in subsection (1)(b)(i) are—
(a) that the building and land in respect of which the notice is served have become incapable of reasonably beneficial use in their existing state,
(b) in a case where listed building consent has been granted subject to conditions with respect to the execution of the works or has been modified by the imposition of such conditions, that the building and land cannot be rendered capable of such use by the carrying out of the works in accordance with those conditions, and
(c) in any case, that the building and land cannot be rendered capable of such use by the carrying out of any other works for which listed building consent has been granted or for which the planning authority or the Secretary of State has undertaken to grant such consent.
(3) The conditions mentioned in subsection (1)(b)(ii) are that the use of the land is substantially inseparable from that of the building and that it ought to be treated, together with the building, as a single holding.
(4) Where, for the purpose of determining whether the conditions mentioned in subsection (2) are satisfied in relation to any building and land, any question arises as to what is or would in any particular circumstances be a reasonably beneficial use of the building and land, no account shall be taken of any prospective use which would involve the carrying out of development (other than any development specified in paragraph 1 or 2 of Schedule 11 to the principal Act) or of any works requiring listed building consent which might be executed to the building, other than works for which the planning authority or the Secretary of State has undertaken to grant such consent.
(1) The planning authority on whom a listed building purchase notice is served under section 28 shall serve on the owner or lessee by whom the notice was served a notice stating—
(a) that the authority are willing to comply with the purchase notice,
(b) that another planning authority or statutory undertakers specified in the notice under this subsection have agreed to comply with it in their place, or
(c) that for reasons specified in the notice under this subsection the authority are not willing to comply with the purchase notice and have not found any other planning authority or statutory undertakers who will agree to comply with it in their place, and that they have sent to the Secretary of State a copy of the purchase notice and of the notice under this subsection.
(2) A notice under subsection (1) must be served before the end of the period of 3 months beginning with the date of service of the listed building purchase notice.
(3) Where the planning authority on whom a listed building purchase notice is served by an owner or lessee have served on him a notice in accordance with subsection (1)(a) or (b) the authority, or the other planning authority or statutory undertakers specified in the notice, as the case may be, shall be deemed—
(a) to be authorised to acquire the interest of the owner or lessee compulsorily in accordance with the provisions of section 42, and
(b) to have served a notice to treat in respect of it on the date of service of the notice under that subsection.
(4) Where the planning authority propose to serve such a notice as is mentioned in subsection (1)(c), they shall first send to the Secretary of State a copy of—
(a) the proposed notice, and
(b) the listed building purchase notice which was served on them.
(1) Where a copy of a listed building purchase notice is sent to the Secretary of State under section 29(4), he shall consider whether to confirm the notice or to take other action under section 31 in respect of it.
(2) Before confirming such a notice or taking such other action, the Secretary of State shall give notice of his proposed action—
(a) to the person who served the notice,
(b) to the planning authority on whom it was served, and
(c) if the Secretary of State proposes to substitute any other planning authority or statutory undertakers for the planning authority on whom the notice was served, to them.
(3) A notice under subsection (2) shall specify the period (which must not be less than 28 days from its service) within which any of the persons, authorities or statutory undertakers on whom it is served may require the Secretary of State to give them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.
(4) If within that period any of those persons, authorities or statutory undertakers so requires, the Secretary of State shall, before he confirms the listed building purchase notice or takes any other action under section 31 in respect of it, give each of them such an opportunity.
(5) If, after any of those persons, authorities or statutory undertakers have appeared before and been heard by the appointed person, or the persons, authorities and statutory undertakers concerned have agreed to dispense with such a hearing, it appears to the Secretary of State to be expedient to take action under section 31 otherwise than in accordance with the notice given by him, the Secretary of State may take that action accordingly.
(6) In this section and sections 31 to 33, “land” means the building and the land in respect of which the notice under section 28(1) is served.
(1) Subject to the following provisions of this section, if the Secretary of State is satisfied that the conditions specified in section 28(2)(a) to (c) are satisfied in the case of any listed building purchase notice, he shall confirm the notice.
(2) If the Secretary of State is satisfied that those conditions are fulfilled only in respect of part of the land, he shall confirm the notice only in respect of that part and the notice shall have effect accordingly.
(3) The Secretary of State shall not confirm the notice unless he is satisfied that the land comprises such land contiguous or adjacent to the building as is in his opinion required—
(a) for preserving the building or its amenities,
(b) for affording access to it, or
(c) for its proper control or management.
(4) If it appears to the Secretary of State to be expedient to do so he may, instead of confirming the notice—
(a) in the case of a notice served on account of the refusal of listed building consent for any works, grant such consent for those works,
(b) in the case of a notice served on account of such consent being granted subject to conditions, revoke or amend those conditions so far as it appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of those works,
(c) in the case of a notice served on account of such consent being revoked by an order under section 21 or 24, cancel the order revoking the consent, or
(d) in the case of a notice served on account of such consent being modified by such an order by the imposition of conditions, revoke or amend those conditions so far as appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of the works in respect of which the consent was granted.
(5) If it appears to the Secretary of State that the land, or any part of it, could be rendered capable of reasonably beneficial use within a reasonable time by the carrying out—
(a) of any other works for which listed building consent ought to be granted, or
(b) of any development for which planning permission ought to be granted,
he may, instead of confirming the listed building purchase notice (or confirming it so far as it relates to that part), direct that if an application is made for such consent for those works, or as the case may be for planning permission for that development, it shall be granted.
(6) If it appears to the Secretary of State, having regard to the probable ultimate use of the building or its site, that it is expedient to do so he may, if he confirms the notice, modify it in relation to either the whole or any part of the land, by substituting another planning authority or statutory undertakers for the authority on whom the notice was served.
(7) Any reference in section 30 to the taking of action by the Secretary of State under this section includes a reference to the taking by him of a decision not to confirm the purchase notice on the grounds that any of the conditions referred to in subsection (1) of this section are not satisfied.
(1) Where the Secretary of State confirms a listed building purchase notice, the authority on whom the notice was served shall be deemed—
(a) to be authorised to acquire the owner’s or lessee’s interest in the land compulsorily in accordance with the provisions of section 42, and
(b) to have served a notice to treat in respect of it on such date as the Secretary of State may direct.
(2) If before the end of the relevant period the Secretary of State has neither—
(a) confirmed the listed building purchase notice, nor
(b) notified the owner or lessee by whom it was served that he does not propose to confirm it, nor
(c) taken any such action in respect of it as is mentioned in subsection (4) or (5) of section 31,
the notice shall be deemed to be confirmed at the end of that period and the authority on whom the notice was served shall be deemed to have been authorised as is mentioned in subsection (1)(a) and to have served a notice to treat in respect of the owner’s or lessee’s interest at the end of that period.
(3) Where a listed building purchase notice is confirmed in respect of only part of the land, references in this section to the owner’s or lessee’s interest in the land are references to the owner’s or lessee’s interest in that part.
(4) Where a listed building purchase notice is modified under section 31(6) by the substitution of another planning authority or statutory undertakers for the authority on whom the notice was served, the reference in subsection (1) to that authority is to that other planning authority or those statutory undertakers.
(5) In this section “the relevant period” means, subject to subsection (6)—
(a) the period of 9 months beginning with the date of the service of the listed building purchase notice, or
(b) if it ends earlier, the period of 6 months beginning with the date on which a copy of the purchase notice was sent to the Secretary of State.
(6) The relevant period does not run if the Secretary of State has before him at the same time both—
(a) a copy of the listed building purchase notice sent to him under section 29(4), and
(b) a notice of appeal under section 18 or 35 relating to any of the land to which the purchase notice relates.
(7) Where any decision by the Secretary of State to confirm or not to confirm a listed building purchase notice (including any decision to confirm the notice only in respect of part of the land, or to give any direction as to the granting of listed building consent or planning permission) is quashed under section 58, the notice shall be treated as cancelled, but the owner or lessee may serve a further notice in its place.
(8) For the purposes of determining whether such a further notice has been served within the period prescribed for the service of listed building purchase notices, the decision concerning listed building consent on account of which the notice has been served shall be treated as having been made on the date on which the decision of the Secretary of State was quashed.
Where compensation is payable under section 25 in respect of expenditure incurred in carrying out any works to a building, any compensation which then becomes payable in respect of the acquisition of an interest in the land in pursuance of a listed building purchase notice shall be reduced by an amount equal to the value of those works.
(1) Where it appears to the planning authority—
(a) that any works have been, or are being, executed to a listed building in their district, and
(b) that the works are such as to involve a contravention of section 8(1) or (2),
they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, serve a notice under this section (in this Act referred to as a “listed building enforcement notice”).
(2) A listed building enforcement notice shall specify the alleged contravention and require such steps as may be specified in the notice to be taken—
(a) for restoring the building to its former state,
(b) if the authority consider that such restoration would not be reasonably practicable or would be undesirable, for executing such further works specified in the notice as they consider are required to alleviate in a manner acceptable to them the effect of the works which were carried out without listed building consent, or
(c) for bringing the building to the state it would have been in if the terms and conditions of any listed building consent for the works had been complied with.
(3) In considering whether such restoration is undesirable under subsection (2)(b), the authority shall have regard to the desirability of preserving—
(a) the character of the building, or
(b) its features of architectural or historical interest.
(4) Where such further works as are mentioned in subsection (2)(b) have been carried out on a building, listed building consent shall be deemed to have been granted in respect of the works carried out on that building.
(5) A listed building enforcement notice—
(a) shall specify the date upon which it is to take effect and, subject to section 35(3), shall take effect on that date, and
(b) shall specify the period (the “period for compliance”) within which any steps are required to be taken and may specify different periods for different steps,
and, where different periods apply to different steps, references in this Act to the period for compliance with a listed building enforcement notice, in relation to any step, are to the period within which the step is required to be taken.
(6) A copy of a listed building enforcement notice shall be served—
(a) on the owner, on the lessee and on the occupier of the building to which it relates, and
(b) on any other person having an interest in the building, being an interest which in the opinion of the authority is materially affected by the notice.
(7) The planning authority may—
(a) withdraw a listed building enforcement notice (without prejudice to their power to issue another), or
(b) waive or relax any requirement of such a notice and, in particular, extend the period specified in accordance with subsection (5),
and the powers conferred by this subsection may be exercised whether or not the notice has taken effect.
(8) The planning authority shall, immediately after exercising the powers conferred by subsection (7), give notice of the exercise to every person who has been served with a copy of the listed building enforcement notice or would, if the notice were reissued, be served with a copy of it.
(9) Every planning authority shall keep available for public inspection free of charge at reasonable hours and at a convenient place a list containing particulars of any building in their district in respect of which a listed building enforcement notice has been served.
(1) A person on whom a listed building enforcement notice is served or any other person having an interest in the building to which it relates may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds—
(a) that the building is not of special architectural or historic interest;
(b) that the matters alleged to constitute a contravention of section 8(1) or (2) have not occurred;
(c) that those matters (if they occurred) do not constitute such a contravention;
(d) that—
(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, as the case may be, the preservation of the building by works of repair or works for affording 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, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted;
(f) that copies of the notice were not served as required by section 34(6);
(g) except in relation to such a requirement as is mentioned in section 34(2)(b) or (c), that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out;
(h) that the period specified in the notice as the period within which any step required by the notice is to be taken falls short of what should reasonably be allowed;
(i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose;
(j) that steps required to be taken by virtue of section 34(2)(b) exceed what is necessary to alleviate the effect of the works executed to the building;
(k) that steps required to be taken by virtue of section 34(2)(c) exceed what may reasonably be required to bring the building to the state in which it would have been if the terms and conditions of the listed building consent had been complied with.
(2) An appeal under this section shall be made either—
(a) by giving written notice of the appeal to the Secretary of State before the date specified in the listed building enforcement notice as the date on which it is to take effect, or
(b) by sending such notice to him in a properly addressed and prepaid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date.
(3) Where an appeal is brought under this section the notice shall be of no effect pending the final determination or withdrawal of the appeal.
(4) A person who gives notice of appeal under this section shall submit to the Secretary of State, either when giving the notice or within such time as may be prescribed, a statement in writing—
(a) specifying the grounds on which he is appealing against the listed building enforcement notice, and
(b) giving such further information as may be prescribed.
(5) Schedule 3 (which makes provision regarding the determination of certain appeals by a person appointed by the Secretary of State) applies in relation to appeals under this section.
(1) The Secretary of State may prescribe the procedure to be followed on appeals under section 35, and may in particular—
(a) require the planning authority to submit, within such time as may be prescribed, a statement indicating the submissions which they propose to put forward on the appeal,
(b) specify the matters to be included in such a statement,
(c) require the authority or the appellant to give such notice of such an appeal as may be prescribed to such persons as may be prescribed, and
(d) require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be prescribed, a copy of the enforcement notice and a list of the persons served with copies of it.
(2) Subject to section 37(3), the Secretary of State shall, if either the planning authority or the appellant so requires, give each of them an opportunity of appearing before and being heard by a person appointed by him for the purpose.
(1) On the determination of an appeal under section 35 the Secretary of State shall give directions for giving effect to the determination, including where appropriate directions for quashing the listed building enforcement notice.
(2) On such an appeal the Secretary of State—
(a) may—
(i) correct any defect, error or misdescription in the listed building enforcement notice, or
(ii) vary the terms of the listed building enforcement notice,
if he is satisfied that the correction or variation will not cause injustice to the appellant or the planning authority, and
(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section 34(6) to be served with a copy of the notice was not served, may disregard that fact if he is satisfied that the person has not been substantially prejudiced by the failure to serve him.
(3) The Secretary of State may—
(a) dismiss such an appeal if the appellant fails to comply with section 35(4) within the prescribed time;
(b) allow such an appeal or quash the listed building enforcement notice if the planning authority fail to comply within the prescribed period with any requirement imposed by regulations made by virtue of section 36(1)(a), (b) or (d).
(4) On the determination of an appeal under section 35 the Secretary of State may—
(a) grant listed building consent for the works to which the listed building enforcement notice relates,
(b) discharge any condition subject to which such consent was granted and substitute any other condition, whether more or less onerous, or
(c) if he thinks fit, exercise his power under section 1 to amend any list compiled or approved under that section by removing from it the building to which the appeal relates.
(5) Any listed building consent granted by the Secretary of State under subsection (4) shall be treated as granted on an application for the same consent under section 9.
(6) The validity of a listed building enforcement notice shall not, except by way of appeal under section 35, be questioned in any proceedings whatsoever on the grounds specified in section 35(1)(b) and (f).
(1) If any of the steps specified in the listed building enforcement notice have not been taken within the period for compliance with the notice, the authority may—
(a) enter on the land and take those steps, and
(b) recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so.
(2) Where a listed building enforcement notice has been served in respect of a building—
(a) any expenses incurred by the owner, lessee or occupier of a building for the purpose of complying with it, and
(b) any sums paid by the owner or lessee of a building under subsection (1) in respect of expenses incurred by the planning authority in taking steps required by it,
shall be deemed to be incurred or paid for the use and at the request of the person who carried out the works to which the notice relates.
(3) If on a complaint by the owner of any land it appears to the sheriff that the occupier of the land is preventing the owner from carrying out work required to be carried out by a listed building enforcement notice, the sheriff may by warrant authorise the owner to go on the land and carry out that work.
(4) A planning authority taking steps under subsection (1) may sell any materials removed by them from the land unless those materials are claimed by the owner within 3 days of their removal.
(5) After any such sale the planning authority shall pay the proceeds to the owner less the expenses recoverable by them from him.
(6) Where a planning authority seek, under subsection (1), to recover any expenses from a person on the basis that he is the owner of any land, and such person proves that—
(a) he is receiving the rent in respect of that land merely as trustee, tutor, curator, factor or agent of some other person, and
(b) he has not, and since the date of the service on him of the demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the authority,
his liability shall be limited to the total amount of the money which he has or has had in his hands on behalf of that other person.
(7) A planning authority who by reason of subsection (6) have not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent may recover any unpaid balance from the person on whose behalf the rent is received.
(8) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) Where, after the end of the period for compliance with the notice, any step required by a listed building enforcement notice to be taken has not been taken, the person who is for the time being owner of the land is in breach of the notice.
(2) If at any time the owner of the land is in breach of a listed building enforcement notice he shall be guilty of an offence.
Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997