A tale of two consents: Planning permission and listed building consent in England

Introduction

Ahead of any development project, owners and occupiers of listed buildings (i.e. buildings statutorily designated for having special architectural or historic interest) must understand the relationship between planning permission and listed building consent. Both consent processes are essential for maintaining the integrity of the built environment, but they serve different purposes and have distinct requirements.

The differences can be subtle but understanding how the two consents work together is important. The two consenting regimes also have separate enforcement processes which do not operate in the same way.

This article highlights some of the key differences and what to look out for. We compare the regimes of planning permission and listed building consent, in timely anticipation of a judicial review challenge scheduled for 1 July 2025 in respect of Grade II listed building Christ Church Longcross, which is summarised at the end. We will be sharing an update of the findings of that case once it is published.

This article focuses on law and policy in England, but comparable requirements are in place in the Welsh and Scottish regimes.

Planning Permission

The primary aim of planning permission is to ensure that proposed development is in line with local and national planning policies, avoids or mitigates unacceptable impacts and, above all, is sustainable (insofar as that term is defined in the National Planning Policy Framework).

Approval process:

Planning permission is a formal approval from a local planning authority (LPA) that is generally required when the definition of “development” in Section 55 of the Town and Country Planning Act 1990 (“TCPA 1990”) is met. This definition captures most types of building or engineering operations as well as material changes in the use of buildings or land. Some development is exempt from planning permission – for example, works which affect the interior only of a building or do not materially affect the external appearance of a building. Permitted development rights apply to some forms of development, but are subject to a range of controls.

The LPA will assess the proposal against the area’s development plan and will grant or refuse planning permission in accordance with the plan unless material considerations direct otherwise. Factors considered can include the impact on the local environment, the character of the area, and the views of the public and other stakeholders.

Planning permission may be granted conditionally or unconditionally, and may be subject to the LPA and applicant entering into statutory agreements (such as a “Section 106 agreement”).

Enforcement:

LPAs have various enforcement powers available where there is a breach of planning control, including the use of planning enforcement notices and breach of condition notices (to restore land to its previous condition or ensure compliance with planning conditions), temporary stop notices (to estop unauthorised works for up to 56 days), and stop notices (to estop unauthorised works over a longer period). Failure to comply with enforcement action can result in criminal prosecution and fines.

When a planning control breach is identified and the LPA intends to submit an enforcement notice, the LPA must assess whether it is “expedient to issue the notice” as required by Section 172 of the TCPA 1990 (i.e. the “expediency test”). This test assesses factors including:

• Extent of compliance with Local Plan policies
• Consideration of other relevant planning factors
• Impact on public amenity
• Effect on protected land, use, or buildings
• Proportionality of action to the breach (to guard against enforcing minor or trivial breaches)
• Public interest in taking action, which case law directs can include broad consideration of advantages and disadvantages, including any public law matter and the costs involved
• Necessity of taking action

Breaches of planning control become immune from enforcement action (in broad terms) after 10 years from the breach if no enforcement action is attempted by the LPA. Following recent changes in law, the 10-year period applies both to unauthorised operational development and material changes of use.

Listed Building Consent

Listed building consent applies to works to listed buildings, (those buildings prescribed by the National Heritage List for England). This consent is necessary for any alterations, extensions, or demolitions that might affect the character of the listed building as one of special architectural or historic interest. Its aim is to protect the heritage value of these buildings while allowing for their continued use and adaptation. Proper consideration of listed building consenting should be about preservation but also recognising the importance of keeping listed buildings in a viable use appropriate for modern times. Determining what is protected requires much more careful analysis than simply reviewing the list description. Consent may also be required to alter or remove objects and structures affixed to the building or within its curtilage (since pre-1948).

Approval process:

Akin to planning permission, listed building consent requires submission of an application to the LPA. The LPA will assess the application based on the building’s architectural or historic interest and the impact of the proposed works on its character and significance. This may involve the LPA consulting with heritage bodies such as Historic England and invariably will include consultation with an LPA Conservation Officer.

Importantly, listed building consent may be required for internal and external works. Determining whether an application is needed can itself be a nuanced question. Not all works will affect the character and appearance of a building as one of special architectural or historic interest. For example, works being undertaken in parts of a building which are already subject to modern intervention may not affect heritage significance. There can be a significant degree of subjectivity in the application of the statutory test in Sections 7–9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the “Listed Buildings Act 1990”) which set out the requirements for consent. This highlights the need for professional advice, as that subjectivity increases the chances of disputes, appeals, and legal challenges.

As with planning permission, consent may be granted conditionally or unconditionally.

Enforcement:

Where there is a breach of the listed building consenting regime, the LPA may issue a listed building enforcement notice (to restore the building to its previous state, alleviate harm to the building, or ensure compliance with the consent’s conditions) or a temporary stop notice (to stop unauthorised works for up to 56 days). Failure to comply with enforcement action can result in criminal prosecution and fines.

The LPA must consider whether enforcement action is expedient under Section 38(1) of the Listed Buildings Act 1990, but the statute limits consideration of expediency by reference to the effect of the works on the character of the building as one of special architectural or historic interest. This is a narrower test than applies to planning enforcement (which takes into account a very broad range of considerations), aimed at avoiding enforcement of trivial breaches. However, it will be interesting to see whether any further guidance will come out of the High Court’s judgment in the case study below.

In addition to the alternative consideration of what constitutes “expediency”, there are two critical differences with the planning enforcement regime:

• The criminal offence of carrying out works to a listed building without consent applies outside of the enforcement process, and criminal sanctions are not limited to where there is non-compliance with an enforcement notice. Carrying out unauthorised works to a listed building can result in prosecution without enforcement action (albeit, in practice, in rare circumstances).
• There is no immunity period which accrues as a result of the LPA not attempting to take enforcement action.

There are, therefore, particularly significant consequences to failure to secure listed building consent, or failure to comply with a consent.

Case Study: Christ Church Longcross

A case study illustrating the susceptibility of the LPA’s listed-building consent decisions to challenge is the recent campaign involving Longcross Christ Church, a Grade II listed church that has been vacant since around 2004 (and has since been used for filming parts of the BBC’s Call the Midwife). In 2019, Runnymede Borough Council (the “Council”) granted Mr Humphreys planning permission to convert the property into five homes. In 2024, the Council retrospectively granted the applicant further permission to make alterations to the stained-glass windows (many of which were replaced with uPVC) and to the shape of the building’s dormers.

Campaigner and former councillor Mrs Burton has challenged the Council’s decision to allow the property’s conversion into housing. Mrs Burton filed for judicial review in January 2025, citing the following breaches of the Listed Buildings Act 1990:

1. Failure to have regard to material considerations in deciding not to take enforcement action pursuant to Section 38 of the Listed Buildings Act 1990;
2. Failure to:
   (i) Consult properly; and
   (ii) Take into account the product of the consultation;
3. Failure to comply with duty in Section 16(2) of the Listed Buildings Act 1990 in granting listed building consent;
4. Enforcement Report 2 December 2024 – duty to reconsider if Listed Building Consent quashed;
5. Failure of Duty of Inquiry/Thameside Duty

Mr Justice Mould granted permission for the claim on grounds 1, 2(ii), 3, and 5, on which the claim will be heard on 1 July 2025. These grounds address the fact that the Council provided authority for the works under the planning permission regime but potentially not under the listed buildings consent regime, highlighting the risk of a consenting gap opening up between the two regimes. Grounds 2(i) and 4 were refused.

Summary of the two consents – what are the differences between planning permission and listed building consent?

The table below highlights the key differences between planning permission and listed building consent:

This article was written by Patrick Robinson (Consultant), Danny Whittle (Senior Associate), and Charlotte Cocker (Trainee Solicitor).

We have market leading experience advising on all areas of planning law and the heritage legal framework. If you have queries regarding planning or heritage law, please contact Danny Whittle ([email protected]) or Gary Soloman ([email protected]).