We have a statutory duty to protect listed buildings and conservation areas. In some circumstances we can take action to help ensure buildings and protected and well maintained:
Section 127 – 129 of the Town and Country Planning (Scotland) Act 1997
Planning permission is required for most development that takes place in Scotland with the exception of some minor works. Sometimes, developers, householders or landowners undertake work without planning permission/listed building consent or fail to comply with the permission/consent they have been granted. This is known as a ‘breach of planning control’ and is monitored through Planning Enforcement. If you believe someone is carrying out work to a listed building or in a conservation area which doesn’t have the appropriate permissions or meet planning conditions you can help by reporting a planning breach.
Building Preservation Notice
Section 3 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
Building preservation notices can be served on owners, lessees and occupiers of an unlisted building which the local authority consider is of special architectural or historic interest and is in danger of demolition or alteration which would affect its character. In effect the building is granted the same protection as if it were listed for a period of six months whilst it is assessed for inclusion in the list by Historic Environment Scotland.
Section 179 of the Town and Country Planning (Scotland) Act 1997
A notice can be served on an owner, lessee or occupier of land (or building), the condition of which is considered to be adversely affecting the amenity of the area. It may specify the steps required to be taken to improve the situation. This can include land which forms part of the setting of a listed building which is being affected by the poor condition of the site.
Section 140 of the Town and Country Planning (Scotland) Act 1997
This is used in urgent or serious cases where unauthorised activity must be stopped, usually on grounds of public safety. When a Stop Notice is served, the Planning Authority must also issue an Enforcement Notice. There is no right of appeal against a Stop Notice and failure to comply is an offence. An appeal can be made against the accompanying Enforcement Notice. If a Stop Notice is served without due cause, or an appeal against the Enforcement Notice is successful, the Council may be required to pay compensation. The use of Stop Notices therefore needs to be carefully assessed by the Council. There is no right of appeal against a Stop Notice and failure to comply with its terms is an offence.
Temporary Stop Notice
Section 144A of the Town and Country Planning (Scotland) Act 1997
In certain cases where a breach of planning control is considered to have a severe impact on amenity, a Temporary Stop Notice can be served. These do not require to be accompanied by an Enforcement Notice and last for a maximum of 28 days.
Listed Building Enforcement Notice
Section 34 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
This must be served on the current owner, occupier and anyone else with an interest in the property. The procedures are similar to those outlined in Enforcement above. The notice must specify the steps to be taken to remedy the breach and a final date for compliance. Failure to meet the terms of the notice by the date specified is an offence. There is the right of appeal to Scottish Ministers against the notice. Breaches of listed building control are a serious matter. It is a criminal offence to undertake unauthorised works to demolish, significantly alter, or extend a listed building. In certain circumstances, this could lead either to a significant fine or imprisonment.
Listed Building Repairs Notice (with the possibility of proceeding to Compulsory Purchase Order)
Section 43 (and 42) of the Planning (Listed Buildings and Conservation Areas) (Scotland ) Act 1997
The local authority can serve a notice on the owner of a listed building specifying works it considers reasonably necessary for the proper preservation of the building. It is appropriate for consideration when a building is neglected and the need for permanent repair accumulates to the point there is potential for serious harm. If after a period of not less than two months, it appears reasonable steps are not being taken for its proper preservation, the local authority can begin compulsory purchase proceedings. The Council can acquire a listed building that is not being properly conserved if this will facilitate its repair either by the Council or through an appropriate repairing owner to which it is subsequently passed.
Section 49 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
The local authority can serve a notice giving the owner a minimum 7 days written notification of its intention to carry out emergency works considered urgently necessary to preserve the listed building and prescribe those works. Works can only be carried out to those parts of a building not in use, and are appropriate in the earlier stages of a building’s deterioration when relatively inexpensive works can halt a building’s decline and improve its chances of economic re-use, or where deterioration is so advanced that without emergency intervention irretrievable loss is inevitable.
Article 4 Directions
Article 4 of The Planning (General Permitted Development) (Scotland) Order 1992 (as amended)
Certain types of development do not require planning permission as they have ‘permitted development rights’. The local planning authority can seek the approval of Scottish Ministers to a Direction for the restriction of ‘permitted development rights’ so that planning permission is required in the interests of protecting or enhancing the character or appearance of a conservation area. The appropriate introduction of these controls will be considered.
Regulation 11 Control of Advertisements
Regulation 11 of The Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984
Certain types of advertisement have ‘express consent’. It is possible for a local planning authority to seek the approval of Scottish Ministers to a Direction for the restriction of classes of express consent in the interests of protecting or enhancing the character or appearance of a conservation area.
Dangerous or Defective Buildings
Building owners have a legal responsibility for preventing their buildings from falling into a dangerous condition. Regular inspections or surveys of your building by competent persons will help you in meeting your obligation to ensure that it is not a hazard and to plan for future repairs. Should a local authority become aware of a building that constitutes a danger to persons in or about the building, to the public generally or to adjacent buildings or places, then it has a duty to act.
Section 28 of The Building (Scotland) Act 2003
Where a local authority considers that a building has defects that require to be dealt with to prevent significant deterioration, it can serve a notice on the owner of the building. The defects that can be dealt with are those that can be described as requiring rectification in order to bring the building into a reasonable state of repair having regard to its age, type and location.
Section 30 The Building (Scotland) Act 2003
In cases where no immediate action is considered necessary but the building is considered to be in a dangerous condition, the local authority may serve a dangerous building notice.
Tree Preservation Order (TPO)
Section 160 of the Town and Country Planning (Scotland) Act 1997
The planning authority can make a TPO to protect individual trees, groups of trees or woodland that are considered to be of cultural or historical significance, and/or where they make a significant contribution to the landscape or townscape and because there may be a potential threat to those trees. Once confirmed, consent would be required for works to those trees.