Building standards enforcement handbook: first edition

11  Consultation for historic and listed buildings

For the purposes of enforcement, section 35 of the Act - Scheduled monuments, listed buildings etc., sets out consultation requirements and limitations for buildings under the following categories:

• scheduled ancient monuments
• listed buildings
• buildings subject to preservation orders, and
• those buildings in conservation areas subject to control of demolition.

Ancient monuments are those included in the schedule of monuments compiled and maintained under section 1 of the Ancient Monuments and Archaeological Areas Act 1979.

Listed buildings are those included in a list of buildings of special architectural or historic interest compiled or approved under section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, preservation notices are under section 3 of that Act and control of demolition of unlisted buildings in conservation areas is under section 66 of that Act.

Before serving a notice that requires work (including demolition) in relation to a type of building defined above there must be consultation with Historic Environment Scotland, the planning authority (where this is not LAs) and anyone else LAs consider necessary. Where the planning authority is within the same authority there should still be a properly recorded consultation.

However, where a dangerous building notice is to be served, or urgent work is needed to remove a danger, consultation must be carried out only "if reasonably practicable". This is intended to cover problems requiring immediate action; in these instances the relevant authorities should be notified subsequently of any such action.

The only qualification of this requirement is that, in relation to the serving of a dangerous building notice or where LAs intends to carry out urgent work necessary to reduce or remove a danger, consultation is required "only if reasonably practicable". This is intended to cover circumstances where immediate action is required; in these instances the relevant authorities should be notified subsequently of any such action as soon as possible. Works undertaken without prior consultation should be limited to the minimum necessary needed to protect the public until the proper consultations have taken place and any necessary consents sought.

There is also an important limitation on the notices. The effect of the notices on a person required to do work in relation to any of the enforcement notices is restricted to work that is not inconsistent with any provisions of the Ancient Monuments and Archaeological Areas Act 1979 or the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. i.e. that where the works required by the notice are of a nature that would normally require listed building consent, conservation area consent or scheduled monument consent, that requirement is not affected or removed by the provisions of section 35 of the Act. So even if there has been prior consultation on the serving of the notice, the relevant consents would still be required before carrying out works.

When looking to establish if the affected building is of a type to which section 35 applies, local planning authorities will hold GIS data on designated and non-designated historic environment assets, and this should always be the first port of call to determine whether a building falls under the requirements of section 35. In an emergency situation, if the planning authority data is not accessible, this information can also be found via the following sources: Welcome to Pastmap | Pastmap or Home | Scotland's environment web.