Buildings at Risk
And the Use of Compulsory Purchase Orders
Jonathan Taylor
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| The London Road Fire Station, Manchester, which has been derelict since 1986. Manchester City Council took a bold decision to CPO the building in 2011 but the Secretary of State did not approve the order and the building remains derelict. (Photo: Jonathan Taylor) |
According to Historic England’s publication Heritage Counts, 849 Grade I and II* listed buildings in England are currently at risk. Of these, around half are likely to be capable of economic use. However, Historic England does not record figures for Grade II listed buildings nationally, which account for 92 per cent of all listed buildings in the country, so this figure is just the tip of the iceberg.
The Buildings at Risk Register for Scotland, by comparison, includes 2,500 entries in a country that holds just ten per cent of the UK’s listed buildings. A figure of 25,000 listed buildings at risk is considered to be a conservative estimate for the UK.
Historic building and conservation areas legislation provides effective control over development and demolition, but there is no legal requirement for a building to be maintained. There’s a tipping point in neglect where the rate of deterioration begins to accelerate rapidly, and the cost of repairs starts to escalate.
If caught in time, a leaking roof may be cured by a few minor repairs. It may even be as simple as cleaning the leaves and the buddleia growing in the gutters, so rainwater does not overflow into the building. Yet, if left, damp is likely to affect the wall plate and immediate roof structures, before seeping down through the walls, supporting dry rot in the timbers of the floor structures below.
Given time, the cost of repairs can exceed the value of the building, particularly if the building is in an area which is struggling or deprived. Often the site itself would be valuable were it not for the fact that the listed status of the building prevents redevelopment. So, in the absence of a viable alternative, historic buildings are sometimes abandoned, leaving them at risk from vandalism, lead theft, arson and the elements.
Redundant buildings may also present a problem in urban areas even if adequately maintained, as they cast a blight on the surrounding townscape and deter wider regeneration. Buildings often form part of a property portfolio, representing an investment for the owners whether in use or not. While some are simply mothballed, awaiting increases in land values, others are neglected with inevitable consequences.
Although there is no requirement for an owner to maintain a listed building, local authorities do have powers at their disposal to enforce repairs under heritage protection legislation. These include urgent works notices, repairs notices and, if all else fails, compulsory purchase orders.
URGENT WORKS NOTICE
The local authority can pay for and carry out the works which are necessary for the preservation of a listed building, and recover the cost by serving a notice on the owner. (In England and Wales this is under Section 54 of the Planning (Listed Buildings and Conservation Areas) Act 1990, but similar provisions apply in Scotland and Northern Ireland - see below.) It is also possible to serve an urgent works notice on the owner of an unlisted building in a conservation area where the deterioration affects the character of a conservation area. Of course, in either case, owners may not have the resources to pay for the work, so there is always some risk that the cost to the council is far higher than the cost of the work itself, once litigation costs are taken into account.
REPAIRS NOTICE AND COMPULSORY PURCHASE ORDER
Under the same legislation (Section 48 in England and Wales) the local authority can serve a repairs notice on the owner requiring work to be carried out which the council considers necessary for the preservation of a listed building. If after at least two months, there is no indication that reasonable steps are being taken to do the work, the council can begin compulsory purchase proceedings.
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| Concrete House, 549 Lordship Road, London which was restored for a housing association by HOLTOP following CPO by Southwark Council. It was built in 1873 to demonstrate Charles Drake’s patent ‘Concrete Builder’ system and is listed Grade II. (Photo: Robin Forster) |
Requirements and duties of the purchasing authority are set out in government guidance and are complex and time-consuming, and will involve a public enquiry if the owner objects. The purchasing authority needs to demonstrate that funding is in place both for the purchase and for the remedial work required. The compulsory purchase order (CPO) must also be confirmed by the Secretary of State, and often the owner can provide sufficient evidence that work is likely to proceed for the Secretary of State to determine in the owner’s favour.
In Manchester, the London Road Fire Station (top illustration) has been redundant since 1986. Although adequately maintained pending conversion to a hotel, its derelict state detracts from the character of its city centre location, and after 20 years of inaction, Manchester City Council finally took action. However, in 2011 the Secretary of State decided
not to confirm the CPO following assurances by the owner, Britannia Hotels, that redevelopment really was proceeding. Costs were awarded against the city council and, shortly afterwards, the scheme was shelved by the owner on the grounds that it was not viable.
The building remains derelict today, despite being opposite the city’s principal railway station and surrounded by vibrant city centre areas. While neighbouring areas have been successfully regenerated and are now thriving, the area around this huge building remains blighted.
ACTION UNDER NON-HERITAGE LEGISLATION
Local authorities also have the power to CPO a building under a variety of other acts of parliament, including planning, housing, transport and environmental legislation. Each has different merits and applications and all may sometimes be applicable to historic buildings.
Of particular relevance is housing legislation, since over two-thirds of listed buildings are in residential use. In England, an ‘empty dwelling management order’ (EDMO) can be served under the Housing Act 2004 which allows the local authority to take over the management of a residential building which has been unoccupied for two years. Works to make it habitable can be carried out by the council, with the cost of the works recovered from the rent. There is no need to CPO the building, which may remain in the same ownership, although all local authorities have the power to requisition land for housing.
BACK-TO-BACK AGREEMENTS
CPOs work best for a local authority where the building is purchased and simultaneously sold to a developer who then repays the council’s costs. This is commonly termed a ‘back-to-back’ arrangement, and involves an indemnity agreement with the final purchaser, made before the CPO process commences.
If the project is not viable, the local authority may enter a back-to-back agreement with a voluntary sector body such as a building preservation trust (BPT). These charitable bodies have the advantage that they can benefit from grant aid from a wide variety of sources not available to private owners, and from low-interest loans offered by the Architectural Heritage Fund. These can make a significant difference to the viability of a project. The costs of the CPO itself may also be covered by a grant from the national heritage body (Historic England, for example).
The sale may be at a lower price than its full market value where this is ‘to secure the promotion or improvement of the economic, social or environmental well-being of its area’ (Circular 06/03). Often the sum is nominal where a BPT is the purchaser.
The rescue of Concrete House, 549 Lordship Road, London (above) by the Heritage of London Trust’s BPT arm, HOLTOP, illustrates this approach. Built in 1873 to demonstrate Charles Drake’s patent ‘Concrete Builder’ system, this unusual building had been allowed to deteriorate by its owner in the hope of redeveloping the site, despite being listed Grade II. It was successfully CPOd by Southwark Council in 2012 and restored by HOLTOP for a housing association, creating five affordable flats for local people.
PRIMARY LEGISLATION |
URGENT WORKS NOTICE |
REPAIRS NOTICE AND CPO |
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| ENGLAND AND WALES | Planning (Listed Buildings and Conservation Areas) Act 1990 |
Section 54 | Section 48 etc |
| SCOTLAND | Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 | Sections 49 and 50 | Sections 42 and 54 etc |
| NORTHERN IRELAND | The Planning(Northern Ireland) Order 1991 Planning Act (NI) 2011 | Section 161 | Article 109 |
CPOs IN AN AGE OF AUSTERITY
CPOs are time-consuming and expensive for local authorities to prepare, and there are a wide range of defences that owners can use to avoid action. Furthermore, cutbacks across the UK have caused many councils to reduce both their conservation departments and their legal teams, and many no longer employ the specialist solicitors required.
Figures published by Historic England show a 35 per cent decline in the number of people employed in local authority historic environment teams over the past ten years (Heritage Counts 2016). Diana Beattie, chair of HOLTOP, believes the trust’s rescue of 549 Lordship Road was the last successful CPO to be brought under heritage protection legislation in London. Four years on, she doubts whether any of the London boroughs now have the resources to support CPOs.
Nationally, there are public bodies that still retain good legal teams with the expertise and the resources to carry out CPOs. For its next project, HOLTOP is working with the Greater London Authority (GLA) to explore whether CPO expertise in Transport for London can be utilised. Under transport legislation, CPOs can only be used for transport purposes, but the GLA has powers under empty homes legislation to CPO land and buildings for housing and regeneration. The two bodies have worked closely together over many years, and the provision of more housing is a high priority for the GLA.
Another variation on this solution may be for local authorities to share specialist legal resources regionally.
HOLTOP is not alone in its concerns. A campaign has been launched under the banner Community Assets in Difficult Ownership to highlight deficiencies in the current system, to promote greater use of existing powers, and to encourage greater awareness among owners that leaving a listed building to decay is never in their best interest – commercially, legally or morally.
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Further Information
M Guy, S Lewis et al, Stopping the Rot: a guide to enforcement action to save historic buildings, English Heritage, 2011
