Planning(Listed Buildings and Conservation Areas) Act 1990 - Enforced Sale

Hi,

We are proposing to enforce the sale of a grade II listed chapel.

The Council has carried out works in default of an Urgent Works Notice served and not complied with under the above legislation

s55 of the act is the relevant section that gives the authority  the same powers and remedies under the Law of Property Act 1925 and otherwise as if they were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.

However, s55 was amended in May 2017 with points 5A to 5G being inserted. My reading is that this is applicable to Wales only but our legal team have asked for clarification.

So, the question is can an English local authority can rely on sections 5(5C) to (5E) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to enforce sale of a listed building to recover expenses of works executed under section 54, and if not, if there is any way other way to enforce sale to recover the expenses.

Any clarity on this would be appreciated

Adrian

 

Forums: 
Enforced Sale

Hi Adrian

The provisions in relation to S 55 (5A) to (5H) were inserted by the Historic Environment (Wales) Act 2016 and would therefore not apply to England.

England

Section 55(1) of the Listed Buildings Act 1990 allows a local authority (or the Secretary of State or Historic England, as the case may be) that has incurred expenditure under section 54 in carrying out urgently necessary works for the preservation of a listed building to seek to recover their expenses from the building owner. The authority must serve Notice on the owner requiring them to pay the expenses of the works. In the case of continuing expenses for temporary support or shelter; the Notice may be repeated.

Urgent Works Notices are different to statutory charges under section 215 or dangerous structure notice under Section 77 / 78 Building Act 1984

In essence, they start off as a personal debt and this is not a local land charge. There is a separate procedure under section 55 against the owner personally which allows them certain grounds to appeal.

However, costs under section 55 can be converted to a county court debt and there are a number of debt enforcement options available.

  • Execution against goods (i.e. instructing bailiffs to seize the debtor’s goods
  • An Attachment of Earnings Order
  • A Third-Party Debt Order; is usually made to stop the debtor taking money out of his/her bank or building society account.
  • Bankruptcy since October 2015, creditors must be owed a minimum of £5,000 before they can start bankruptcy proceedings. The previous limit was £750.
  • Charging Orders - Interim Charging order, final charging order, order of sale

Once you have an interim charging order, then this can be registered at the land registry assuming the property is registered.

However, a charging order would not have any priority over any existing registered charges ie mortgages.

So, before you entertain doing works under this notice it is important to establish that there is enough equity in the property, or they have other personal assets (personal property or other investment properties), to ensure that the LA is not out of pocket. You could then proceed to a final charging order and then an Order of Sale, if appropriate in the circumstances.

Therefore, it would be more beneficial to pursue action under Section 77 or 78 Building Act 1984 if appropriate  (better than Section 215). The benefit of using the Building Act 1984 is that….

"as from the date of the completion of the works, the expenses and interest accrued due thereon are, until recovered, a charge on the premises and on all estates and interests in them.

(A local authority, for the purpose of enforcing a charge under subsection have all the same powers and remedies under the Law of Property Act 1925 and otherwise as if they were mortgagees by deed having powers of sale and lease or accepting surrenders of leases and appointing a receiver".

Therefore, the charge under the Building Act 1984 would take priority over any existing mortgage /charges and the LA should recover their monies, assuming there is some value in the property (not always the case with Listed Buildings (cost of repair exceeds gross development value)). You can then enforce the sale of the property, which also has the benefit of creating a change in ownership.

Wales

In Wales, we have the benefit of the additional provisions under Section 55(5A-5G) to assist with debt recovery. However, I would still use the Building Act 1984, if appropriate in the circumstances.

There is a very helpful Guide relating to Enforcement Action to Save Historic Buildings "Stopping the Rot", which was updated in 2016.

I hope the above is of assistance.

As always this post does not constitute legal advice and you should make enquiries with your own Solicitors.

Regards

Andrew Lavender

Housing Training and Consultancy