East Riding of Yorkshire Council, R (on the application of) v Hobson

For an offence involving unauthorised alteration of a listed building, the court must identify the works of alteration before deciding whether they affect the building’s special architectural or historic character. Where removal or dismantling forms part of a wider scheme including replacement or rebuilding, the court should assess the works as a whole and should not artificially stop the assessment at an intermediate stage. Whether later works form part of the same alteration is a question of fact. The approach does not prevent enforcement action while works are in progress. The principle does not apply to demolition, which is criminalised without proof of effect on the building’s special character.

The planning authority prosecuted the defendant under section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 for unauthorised works to the stable block of a listed building. The block had been dismantled and subsequently reconstructed, although the reconstruction exceeded the Listed Building Consent.

The magistrates’ court found that the dismantling and reconstruction formed part of one scheme and that the completed works did not affect the character of the listed building. The authority appealed by case stated, asking whether the court should consider only the dismantling specified in the charge or also the subsequent reconstruction.

1. Appeal dismissed. The magistrates’ court had not erred in law. The admitted works were unauthorised alterations, but the remaining issue was whether they affected the character of the listed building as one of special architectural or historic interest.

2. Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires the court first to determine what constitutes the relevant works of alteration. That is a question of fact. Where dismantling and reconstruction form part of one process, it is impermissible to assess the effect on the building at an artificial intermediate stage. The court must consider the completed works forming part of the alteration.

3. The court may treat removal and later replacement as separate works where, for example, there is an appreciable time gap, evidence that the later works arose only because of planning intervention, or evidence of an intention not to proceed with the later works. Future works may be considered where convincing evidence establishes that they form part of the works of alteration.

4. The reasoning is consistent with the enforcement powers under sections 38 and 44A. A planning authority may intervene while works are in progress, including by enforcement notice or injunction. The decision-maker must nevertheless determine what the works are and whether, when carried out, they would affect the building’s special character.

5. The distinction between alteration and demolition was supported by Shimizu (UK) Ltd v Westminster City Council [1997] 1 AER 481. Normally, demolition of part of a listed building is alteration, although whether pulling down almost all of a building amounts to demolition or alteration is a question of fact. The present approach does not apply to demolition, for which proof of effect on special character is unnecessary.

6. The court observed that owners should not regard the decision as encouragement to undertake unauthorised works. Such works carry a substantial risk that the completed scheme will be found to have affected the building’s character. The court certified the matter as one of public importance, refused leave to appeal, ordered the claimant authority to pay the defendant’s costs, and directed that the 14-day period for applying for leave to appeal would run from receipt of the transcript.

• Beverley and The Wolds Magistrates’ Court: On 21 August 2007, the defendant was acquitted of the offence under section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
• High Court (Administrative Court): The appeal by case stated was dismissed. The matter was certified as one of public importance, but leave to appeal was refused.