CPOs and run-down listed buildings

Derelict listed building dreamstime xs 42910791 146x219Chris Skinner examines how effective use can be made of compulsory purchase orders to deal with run-down listed buildings.

Problem listed buildings regularly feature on the radar of local authorities. Such buildings are often in poor repair. Sometimes the owner has no plans for the property but wants to hang on to it. Sometimes the owner is happy to sell it, but has unrealistic expectations as to its value. The first response of the local authority will probably be to encourage the owner to either get on and repair the property himself, or to dispose of it to someone who will. It could be that a notice under section 215 of the Town and Country Planning Act 1990 will be considered. Whilst this might result in the appearance of the property being improved, it is unlikely to deal with significant disrepair. There is the possibility, if the building is in a particularly bad way, of the council executing works under section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”). The works covered by section 54 are those that are urgently necessary for the preservation of the building. Section 55 sets out the procedure for recovering the cost of the works from the owner of the building. Unfortunately the cost of the works in England are not a charge on the property. (They are a charge in Wales).With an impecunious owner many authorities will be reluctant to use their powers under section 54.

What other options are there? Section 47 of the Listed Buildings Act enables a local authority to compulsorily acquire a listed building where reasonable steps are not being taken for properly preserving it. However there is a procedural requirement that must be satisfied before you can make your CPO. You must first have served a notice under section 48 of the Act and two months must have elapsed. This notice is commonly referred to as a Repairs Notice. However it does not call on the owner to carry out any works. It merely sets out the works required for the proper preservation of the building and explains that the council can make a CPO after two months. The purpose of the notice is a “warning shot across the bows”. It gives the owner the opportunity to put to the local authority it's own proposals for repairing the property. If they are acceptable it is unlikely that a CPO will be needed. There are a few points to make at this juncture. Serving a Repairs Notice does not compel the local authority to proceed with a CPO. Serving a Repairs Notice does not entitle the owner to force the council to buy the property. Advice on what level of detail to include in a Repairs Notice is helpfully contained in Historic England’s “Stopping the Rot” document. It may well be that serving a Repairs Notice is all that is required to get the owner to sort things out himself.

If the Repairs Notice elicits no, or an unsatisfactory, response the next weapon in the armoury is the CPO. The three elements of a successful CPO project are a problem, a solution, with compulsory acquisition linking the two. Where you have a run down listed building that the owner will not repair the “problem” is obvious. The “solution” can be the more difficult part of the equation. The local authority needs to demonstrate that following its acquisition there is a reasonable likelihood of the property being repaired and remaining in that state. What does a “reasonable likelihood” mean in practice? Well, you need to be able to show that there either is, or there is likely to be, someone who will, take a transfer of the property following completion of the CPOe, and who will have the resources to complete the renovation. The resources do not all need to be secured when the CPO is made or confirmed, but there needs to be a good prospect of them being available within the timescale of the renovation project. The overall test for the confirmation of a CPO is that of a compelling case in the public interest. Whilst this test will be met even if you can only show a reasonable likelihood of the desired outcome being achieved, it is obviously good to have even greater certainty.

There are a couple of points to specifically make about listed building CPOs. Firstly you can acquire not only the footprint of the listed building, but also “relevant land”. This is defined in section 47(7) of the Listed Buildings Act. Curtilage land will generally be included within this definition. It can however include land next to the listed building that is required for enabling development to subsidise the cost of repairs. Secondly even if there is a conservation deficit (the cost of repairs exceeds the value of the repaired property) the compensation paid to the ex owner following the successful compulsory acquisition will not be nil. The Upper Tribunal (Lands Chamber) has established the principle that an entrepreneurial developer will pay something for a property even though this may seem imprudent.

An illustration of the above principles can be seen in four listed building CPOs undertaken by nplaw. Two CPOs were made by King’s Lynn and West Norfolk Borough Council in respect of empty listed houses. They were in poor repair and there had been no response to the Repairs Notices. Agreements were reached with two individuals who particularly wanted to acquire the houses. They not only agreed to underwrite the CPO costs, but to carry out the necessary renovations. In one case the property was going to be the individual’s home, and in the other it was going to provide accommodation for a relative. There were no objections to either CPO.

Denbighshire County Council made a CPO in respect of a former Victorian asylum in extensive grounds in Denbigh. The proposal was that the site would be transferred to a Building Preservation Trust.They would sell off parts of the grounds for enabling development, which would then fund the renovation of the main part of the Listed building. Despite strenuous opposition from the owner, who claimed that he should be allowed to develop his own scheme, or sell to someone else who would, the CPO was confirmed. The Welsh Ministers contrasted his track record, with substantial deterioration during his period of ownership, with the council’s well thought-out proposals that, more likely than not, would be achieved.

Anglesey County Council made a CPO in respect of a former Market Hall, which it wanted to use for a library and community space. Some funding for the project had already been obtained and there was every indication that the balance of funding would be available post confirmation of the CPO. The owner had done some works to repair the property but they were limited in their extent. He also had planning permission for a residential conversion scheme, but there seemed little realistic prospect that it would ever be implemented. Following a public inquiry the CPO was confirmed.

Chris Skinner is Practice Director for nplaw, the shared local authority legal service hosted by Norfolk County Council. He also heads nplaw’s CPO Consultancy Service, that undertakes CPO work for local authorities across England and Wales.

           

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