Certificates Of Lawful Development
Since 1 April 2014 it has been possible to apply for a Certificate of Lawfulness of Proposed Works to a Listed Building (“CoL”). Because the documentation required for a CoL differs little from that for a Listed Building Consent (“LBC”), CoLs have not been widely adopted, and many Conservation Officers report that they have never dealt with one in practice.
In recent months I have made a number of successful CoL applications and have come to realise that they are a powerful tool for listed‑building owners.
Many owners, commentators and experts will tell you that if you intend to undertake works to a listed building then you must apply for a LBC. That is not strictly true. The relevant legislation (section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990) requires permission only for works that would affect the character of the building as one of special architectural or historic interest. The test is conditional, not absolute. Works can therefore be undertaken – even works that go well beyond repairs, maintenance and like‑for‑like replacement – if they do not affect the building’s character.
Most professionals advise owners to seek LBC before starting any works, to avoid the risk of enforcement action or prosecution. I understand that caution, but I disagree with treating it as a blanket rule. A CoL can provide a more targeted and proportionate route where the legal test is clear.
A CoL is a particularly powerful tool because it changes the narrative when you approach the local planning authority.
An LBC application effectively says:
“I am proposing works that do affect the character of the building and I am seeking consent”.
Once you frame it that way, the decision‑making naturally engages the National Planning Policy Framework (NPPF) guidance on “substantial harm” and “less than substantial harm” to designated heritage assets (paragraphs 195–196). That is appropriate where character is genuinely affected, but it can be an unnecessary hurdle.
A valid CoL application, by contrast, asserts that the proposed works do not affect the building’s character. The application is then assessed against the legal test of character, rather than the policy‑driven “harm” test. The LPA must consider whether the works fall inside or outside the statutory consent requirement, the application is viewed through a different lens.
A recent example illustrates this: a Facebook post asked whether a LBC was required to replace a rotten wooden fence at a listed building. Opinions were divided, with some saying a LBC was clearly needed and others arguing that a like‑for‑like replacement would not require consent. I would argue that, in the majority of circumstances, replacing a decayed wooden fence with a new (wooden) fence – whether of similar design, height and proportions or somewhat different – is unlikely to affect the character of the listed building itself. If the owner were in doubt, a CoL application would resolve the issue without ever having to acknowledge harm.
My experience also shows that, where there truly is no effect on character, light‑touch documentation is usually sufficient to support a CoL. Clear photographs, simple sketches and basic plans are often more than adequate; there is generally no need for expensive, highly detailed scaled drawings unless the proposal is inherently complex.
Contact me to find out more.
