Listed buildings: statutory considerations for surveyors

Understanding the statutory context of listed buildings is essential for professionals advising on their alteration and management. The regulatory framework ultimately seeks to safeguard heritage significance while enabling viable use, which requires careful interpretation in practice.

This article, applicable to arrangements in England, sets out key statutory considerations for surveyors advising on listed buildings.

By revisiting the statutory background for listing, surveyors are provided with the tools needed to counter common misunderstandings and give clear advice.

The register of such buildings, formally known as the National Heritage List for England (NHLE), is maintained by the relevant secretary of state; this is currently the Secretary of State for Culture, Media and Sport. In making additions to, or occasionally deletions from, the NHLE, the secretary of state is advised by Historic England's listings department.

Historic England divides listed buildings into three categories or grades as follows.

• Grade I listed buildings are buildings 'of exceptional interest'. Historic England estimates that around 2.5% of listed buildings fall into this category.
• Grade II* listed buildings are 'particularly important buildings of more than special interest'. Historic England estimates that around 5.8% of listed buildings fall into this category.
• Grade II listed buildings are buildings of 'special interest' and encompass the remainder, estimated to be around 91.7% of all listed buildings.

Surveyors may be surprised to note that these figures are estimates, and neither the exact number of listed buildings nor their distribution between the three grades has been firmly established. The difficulty is one of definition.

Some listed buildings include many different properties; notably Bath's Royal Crescent (grade I listed) is a single listing that covers many individual terraced houses. Similarly, many rural listed buildings have extensive outbuildings protected by curtilage listing. These may be inaccessible, and a detailed survey may be required to establish how many individual buildings are present.

More information on the listing process, including Historic England's Listing Selection Guides explaining their typical criteria for supporting an application to list any particular building, can be found on Historic England's website.

The restriction states that 'no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised'.

'Authorisation' of works is defined in section 8 as the process of obtaining listed building consent from the relevant local planning authority (LPA) – or, in some cases, the secretary of state – with further special provisions for consultation where demolition is proposed. As such, listed building consent is generally required to be obtained from the LPA for most works to listed buildings.

Surveyors will note that the 'restriction' in section 7 captures both the 'execution of works' and their being 'caused to be executed'. The latter encompasses the responsibility of clients and professional advisers who may specify and instruct building works, as well as the building contractors completing them.

It should also be noted that, in the context of the Act, the completion or instruction of unauthorised works to a listed building attracts criminal rather than civil liability. Liability rests both with those carrying out or undertaking works and with those causing them to be carried out.

Such works generally fall into two categories:

• exact like-for-like repairs or
• removing damaging modern accretions that are agreed to be of no special interest.

It may be difficult to establish whether repairs are truly like for like in all respects, for instance whether the mortar mix used for repointing exactly reproduces that in the original work.

Similarly, while the removal of modern accretions may have no impact on a building's special interest, making good following such removals may have an effect. For instance, removing a set of modern internal doors would likely affect any retained original walls to either side, and arrangements for making good of any such original adjoining structures could affect their special interest.

In practice, therefore, while in some cases completion of simple, genuinely like-for-like repairs or removing damaging modern accretions may not require listed building consent, it is highly advisable to contact the LPA before instructing any work that uses this route to confirm in writing their agreement with the approach taken.

Statutory consultation requirements vary depending on the nature and scale of the proposals, not solely the grade of listing. Full details of the current statutory requirements are contained in the relevant government direction, and additional guidance is provided by Historic England.

Usually, the statutory consultees consist of Historic England (in all cases) plus one of the national amenity societies. There is a degree of flexibility as to which amenity society is engaged, depending on the nature of the building; however, the typical division of engagements is as follows.

• The Society for the Protection of Ancient Buildings (SPAB) for all buildings predating 1700.
• The Georgian Group for buildings dating from around 1688 to 1837, a period known as the 'long 18th century'.
• The Victorian Society for Victorian and Edwardian buildings dating from around 1837 to 1919.
• Twentieth Century Society for Modernist buildings and buildings from 1920 onwards.
• Historic Buildings & Places, formerly the Ancient Monuments Society but now a 'floating amenity society', engages in casework of any date.

For high-profile or major projects of any kind, it is highly advisable to engage with the relevant statutory consultees at an early stage of scheme development to obtain their comments on any proposed works. This should help avoid unexpected late interventions and delays in the process of applying for listed building consent.

The Act clarifies that the definition of a listed building should be taken to mean 'any object or structure fixed to the building'. This means that all attached features such as staircases, fire surrounds, decorative joinery and the like are usually protected.

Conversely, the Act does make provision for the list entry to exclude items of no particular interest, by identifying 'that an object or structure… is not to be treated as part of the building for the purposes of th[e] Act', or alternatively 'that any part or feature of the building is not of special architectural or historic interest' where part of the building would clearly not merit listing in its own right.

A typical example might be a 19th-century former country house being used as student halls, with extensive attached 1960s residency blocks to the rear that would not otherwise be listed.

In practice, use of the provision to exclude features from the list entry is relatively rare. It can allow for part of a building, or a structure attached to a building, to be excluded from listing protections, but only if this is made clear within the list entry. 

Even if the list entry includes such a provision, the LPA should be contacted to confirm their interpretation of the provision concerned before starting any works dependent on it.

Additional considerations in the determination of curtilage structures include the physical layout of the property, ownership status over time – specifically at or from 1 July 1948 – and the functional relationship between the main building and the curtilage structures.

Assessment of curtilage is fact-specific and may require legal interpretation and confirmation rather than relying solely on title plans or a visual inspection.

The practical effect of curtilage listing is that, in most cases, the protections of listing are generally extended in full to historic outbuildings.

By way of a commonly seen example, in the case of a grade II* listed small country house, historic curtilage features dated before 1 July 1948 such as boundary walls, gates, any historic greenhouses and walled gardens would also be deemed to be listed grade II*, and would be protected to exactly the same extent as the main house.

This is a key point often misunderstood by clients, who may purchase an estate with a single listed building surrounded by outbuildings and landscape features, and begin work on the outbuildings believing them to be unprotected.

In a typical anonymised example, a building listed as All Saints Rectory in the 1970s and subsequently converted to flats and renamed The Grange Apartments in the 1990s might still be listed as All Saints Rectory.

Many list entries, especially those pre-dating the 1990s, are relatively brief and might not capture the full extent of a building's interest.

Listing surveys conducted in the 1960s and 1970s rarely had internal access to buildings to fully record their details and determine the structures' exact ages.

Modern list entries provide considerably more detail, however, and Historic England is working to update older list entries. A full resurvey could, for example, redate a rural barn formerly listed as 17th century as 13th century, or reveal a 16th-century timber frame behind a polite elevation of facing brickwork in a house dated as 18th century.

As such, the list entry does not provide a comprehensive description of the building's special architectural and historic interest. Importantly, therefore, the absence of a feature or an internal description in the list entry does not indicate that the feature or interior is unprotected by listing.

The NHLE, which includes a map search function, is considered the most reliable and therefore the preferred source for list entries.