Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

• Citation: 1997 c. 9
• Sections: 128

Section 1 Listing of buildings of special architectural or historic interest.

(1) For the purposes of this Act and with a view to the guidance of planning authorities in the performance of their functions under this Act in relation to buildings of special architectural or historic interest, Historic Environment Scotland shall compile lists of such buildings or approve, with or without modifications, such lists compiled by other persons or bodies of persons, and may amend any list so compiled or approved.

(2) In considering whether to include a building in a list compiled or approved under this section, Historic Environment Scotland may take into account not only the building itself but also—

(a) any respect in which its exterior contributes to the architectural or historic interest of any group of buildings of which it forms part, and

(b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building.

(3) Before compiling or approving, with or without modifications, any list under this section or amending any such list Historic Environment Scotland shall consult such persons or bodies of persons as appear to it appropriate as having special knowledge of, or interest in, buildings of architectural or historic interest.

(4) In this Act “ listed building ” means a building which is for the time being included in a list compiled or approved by Historic Environment Scotland under this section; and, for the purposes of this Act, the following shall , subject to subsection (4A), be treated as part of the building—

(a) any object or structure fixed to the building, and

(b) any object or structure within the curtilage of the building which, though not fixed to the building, forms part of the land and has done so since before 1st July 1948.

(4A) In a list compiled or approved under this section, an entry for a building may provide—

(a) that an object or structure mentioned in subsection (4)(a) or (b) is not to be treated as part of the building for the purposes of this Act,

(b) that any part or feature of the building is not of special architectural or historic interest.

(5) Schedule 1 (which makes provision as to the treatment as listed buildings of certain buildings formerly subject to building preservation orders) shall have effect.

Section 1A Publication of lists and notification of listing etc.

(1) Historic Environment Scotland must—

(a) publish any list compiled or approved under section 1, and any amendments of such a list, and

(b) make such lists available for public inspection,

in such manner as may be prescribed.

(2) Historic Environment Scotland must also—

(a) notify such persons as may be prescribed, and

(b) do so in such form and manner, and within such time, as may be prescribed,

of the inclusion of a building in, the amendment of an entry relating to a building in or the exclusion of a building from such a list.

(3) The Scottish Ministers may by regulations make further provision for—

(a) the publication of such lists,

(b) the making of such lists available for public inspection,

(c) the notification of the inclusion of a building in, the amendment of an entry relating to a building in or the exclusion of a building from such a list.

(4) Regulations under subsection (3) may in particular provide for planning authorities in whose districts any buildings included in such lists are situated to take any of the steps mentioned in that subsection.

Section 2 Publication of lists.

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Section 3 Temporary listing: building preservation notices.

(1) If it appears to a planning authority that a building in their district which is not a listed building—

(a) is of special architectural or historic interest, and

(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

they may serve on the owner, lessee and occupier of the building a notice (in this Act referred to as a “ building preservation notice ”).

(2) A building preservation notice shall—

(a) state that the building appears to the planning authority to be of special architectural or historic interest and that they have requested Historic Environment Scotland to consider including it in a list compiled or approved under section 1, and

(b) explain the effect of subsections (3) to (5) and Schedule 2.

(3) A building preservation notice—

(a) shall come into force as soon as it has been served on the owner, lessee and occupier of the building to which it relates, and

(b) subject to subsection (4), shall remain in force for 6 months from the date when it is served or, as the case may be, last served.

(4) A building preservation notice shall cease to be in force if Historic Environment Scotland —

(a) includes the building in a list compiled or approved under section 1, or

(b) notifies the planning authority in writing that it does not intend to do so.

(5) While a building preservation notice is in force with respect to a building, the provisions of this Act (other than section 53) and the principal Act shall have effect in relation to the building as if it were a listed building.

(6) If, following the service of a building preservation notice, Historic Environment Scotland notifies the planning authority that it does not propose to include the building in a list compiled or approved under section 1, the authority—

(a) shall immediately give notice of Historic Environment Scotland's decision to the owner, lessee and occupier of the building, and

(b) shall not, within the period of 12 months beginning with the date of Historic Environment Scotland's notification, serve another building preservation notice in respect of the building.

Section 4 Temporary listing in urgent cases.

(1) If it appears to the planning authority to be urgent that a building preservation notice should come into force, they may, instead of serving the notice on the owner, lessee and occupier of the building to which it relates, affix the notice conspicuously to some object on the building.

(2) The affixing of a notice under subsection (1) shall be treated for all the purposes of section 3, this section, sections 9 to 24 and Schedule 2 as service of the notice.

(3) A notice which is so affixed must explain that by virtue of being so affixed it is treated as being served for those purposes.

Section 5 Provisions applicable on lapse of building preservation notice.

Schedule 2 (which makes provision as respects the lapse of building reservation notices) shall have effect.

Section 5A Certificate that building not intended to be listed

(1) Historic Environment Scotland may, on the application of any person, issue a certificate stating that it does not intend to include a building in a list compiled or approved under section 1.

(2) Where Historic Environment Scotland issues a certificate under subsection (1) in respect of a building—

(a) it may not for a period of 5 years from the date of issue exercise in relation to the building any of the powers conferred on it by section 1, and

(b) a planning authority may not for that period—

(i) serve a building preservation notice in relation to the building, or

(ii) affix such a notice under section 4(1).

(3) A person submitting an application to Historic Environment Scotland under subsection (1) must, at the same time as submitting it, give notice of the application to the planning authority within whose district the building is situated.

Section 5B Appeal against listing of buildings

(1) This section applies where Historic Environment Scotland makes a decision—

(a) to include a building in the list compiled or approved under section 1,

(b) to amend an entry in the list relating to a building (but not where the amendment excludes a building from the list).

(2) A person mentioned in subsection (3) may appeal the decision to the Scottish Ministers.

(3) The person is—

(a) the owner of the building,

(b) the tenant of the building,

(c) the occupier of the building.

Section 5C Determination of appeals under section 5B

(1) The Scottish Ministers may—

(a) dismiss an appeal under section 5B,

(b) allow such an appeal (in whole or in part).

(2) Where the Scottish Ministers allow an appeal, they may vary a part of the decision appealed against whether or not the appeal relates to that part of the decision.

(3) Where the Scottish Ministers allow an appeal, they may direct Historic Environment Scotland to exercise its power under section 1 to amend the list compiled or approved under that section to give effect to their decision.

(4) Except as provided for by sections 57 and 58, the decision of the Scottish Ministers on an appeal under section 5B is final.

Section 5D Procedure for appeals under section 5B

(1) Regulations may make provision in connection with appeals under section 5B, including provision about—

(a) the grounds on which an appeal may be made,

(b) the information that is to be provided to, or may be required by, the Scottish Ministers in connection with the appeal.

(2) Regulations under subsection (1) may also make provision about the procedure to be followed, including—

(a) the form, manner and time for making an appeal,

(b) the notification of an appeal,

(c) the manner in which an appeal is to be conducted.

(3) Regulations made by virtue of subsection (2)(c) may also include provision that the manner in which an appeal, or any stage of an appeal, is to be conducted (as for example whether written submissions are to be presented or persons are to be heard) is to be at the discretion of the Scottish Ministers (or of a person appointed by them under this Act).

(4) Schedule 3 (which makes provision about the determination of certain appeals by a person appointed by the Scottish Ministers) applies to an appeal under section 5B.

Section 6 Restriction on works affecting listed buildings.

Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.

Section 7 Authorisation of works: listed building consent.

(1) Works for the alteration or extension of a listed building are authorised if—

(a) the planning authority or the Secretary of State has granted written consent for the execution of the works, and

(b) the works are executed in accordance with the terms of the consent and of any conditions attached to it.

(2) Works for the demolition of a listed building are authorised if—

(a) such consent has been granted for their execution,

(b) notice of the proposal to execute the works has been given to Historic Environment Scotland ,

(c) after such notice has been given either—

(i) for a period of at least 3 months following the grant of listed building consent, and before the commencement of the works, reasonable access to the building has been made available to Historic Environment Scotland for the purpose of recording it, or

(ii) Historic Environment Scotland has stated in writing that it has completed its recording of that building or that it does not wish to record it, and

(d) the works are executed in accordance with the terms of the consent and of any conditions attached to it.

(3) Where—

(a) works for the alteration, extension or demolition of a listed building have been executed without such consent, and

(b) written consent is granted by the planning authority or the Secretary of State for the retention of the works,

the works are authorised from the grant of that consent.

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(5) The Secretary of State may by order provide that subsection (2) shall have effect with the substitution for the reference to Historic Environment Scotland of a reference to such other body as may be so specified.

(6) Such an order shall apply in the case of works executed or to be executed on or after such date as may be specified in the order.

(7) Consent under subsection (1), (2) or (3) is referred to in this Act as “ listed building consent ”.

Section 8 Offences.

(1) If a person contravenes section 6 he shall be guilty of an offence.

(2) Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent, he shall be guilty of an offence.

(3) In proceedings for an offence under this section it shall be a defence to prove the following matters—

(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building,

(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter,

(c) that the works carried out were limited to the minimum measures immediately necessary, and

(d) that notice in writing justifying in detail the carrying out of the works was given to the planning authority as soon as reasonably practicable.

(4) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding £50,000 , or both, or

(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine, or both.

(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

Section 9 Making of applications for listed building consent.

(1) Except as provided in sections 11 to 14 or section 73B , an application for listed building consent shall be made to and dealt with by the planning authority.

(2) Such an application shall be made in such form as the planning authority may require and shall contain—

(a) sufficient particulars to identify the building to which it relates, including a plan,

(b) such other plans and drawings as are necessary to describe the works which are the subject of the application, and

(c) such other particulars as may be required by the planning authority.

(3) Provision may be made by regulations with respect to—

(a) the manner in which applications for listed building consent are to be made,

the form and manner in which such applications must be made,

(aa) particulars of such matters as are to be included in such applications,

(ab) any documents or other materials which are to accompany such applications,

(ac) the planning authority giving notice of such applications made to them—

(i) to such persons or categories of person as may be prescribed,

(ii) in such manner as may be prescribed,

(iii) for such period as may be prescribed, and

(iv) on such number of occasions as may be prescribed,

(ad) the applicant providing such person or persons as may be prescribed such information with respect to the application as may be prescribed,

(b) the manner in which such applications are to be advertised, ...

(c) the time within which they are to be dealt with by planning authorities or, as the case may be, by the Secretary of State. , and

(d) the procedure to be followed by planning authorities or, as the case may be, the Scottish Ministers in considering and determining such applications.

(4) The regulations must require that an application for listed building consent of such description as is prescribed must be accompanied by a statement about how issues relating to access for the disabled to the building have been dealt with.

(5) The form and content of such a statement are to be such as is prescribed.

(6) The regulations must also require planning authorities, before granting or refusing applications for listed building consent in such cases or classes of case as may be prescribed, to consult—

(a) Historic Environment Scotland,

(b) such other persons as may be—

(i) prescribed, or

(ii) specified in directions given to planning authorities by the Scottish Ministers.

(7) Directions given by virtue of subsection (6)(b)(ii) for the purposes of regulations under this section may be given to—

(a) planning authorities generally,

(b) a particular planning authority, or

(c) a description of planning authority.

Section 10 Certificates as to interests in listed building etc.

(1) Regulations may provide that an application for listed building consent shall not be entertained unless it is accompanied by a certificate in the prescribed form as to the interests in the building to which the application relates.

(2) Any such regulations may—

(a) include requirements corresponding to those mentioned in sections 35 and 38(2) of the principal Act,

(b) make provision as to who, in the case of any building, is to be treated as the owner for the purposes of any provision of the regulations, and

(c) make different provision for different cases or classes of case.

(3) If any person—

(a) issues a certificate which purports to comply with the requirements of regulations made by virtue of this section and which contains a statement which he knows to be false or misleading in a material particular, or

(b) recklessly issues a certificate which purports to comply with those requirements and which contains a statement which is false or misleading in a material particular,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 10A Declining to determine an application

(1) A planning authority may decline to determine an application (in this subsection referred to as the “ current application ”) for listed building consent—

(a) if—

(i) in the period of two years ending with the date on which the current application is received, the Scottish Ministers have refused a similar application referred to them under section 11 or have dismissed an appeal against the refusal of, or an appeal under section 18(2) in respect of, a similar application, and

(ii) in the opinion of the authority there has not, since the Scottish Ministers refused the similar application or dismissed the appeal, been any significant change in any material considerations,

(b) if—

(i) in that period of two years the planning authority have refused more than one similar application,

(ii) there has been no appeal to the Scottish Ministers against either (or as the case may be any) of those refusals, and

(iii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the refusals, been any significant change in any material considerations,

(c) if—

(i) in that period of two years the planning authority have refused more than one similar application,

(ii) there has been an appeal to the Scottish Ministers against either (or as the case may be any) of those refusals but as at the time the current application is received no such appeal has yet been determined, and

(iii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the refusals, been any significant change in any material considerations,

(d) if—

(i) in that period of two years there have been appeals under section 18(2) in respect of more than one similar application but as at the time the current application is received no such appeal has yet been determined, and

(ii) in the opinion of the authority there has not, since the more (or as the case may be most) recent of the appeals was made, been any significant change in any material considerations, or

(e) if—

(i) in that period of two years two similar applications have been made to the planning authority,

(ii) the planning authority have refused one of those applications and there has been an appeal under section 18(2) in respect of the other but as at the time the current application is received the appeal under that section has yet to be determined as has the appeal (if any) against the refusal, and

(iii) in the opinion of the authority there has not, since the refusal or since the appeal was made (whichever was the more recent), been any significant change in any material considerations.

(2) For the purposes of this section an application for listed building consent is to be taken to be similar to another such application only if the listed building and the works to which the applications relate are in the opinion of the planning authority the same or substantially the same.

Section 11 Reference of certain applications to Secretary of State.

(1) The Secretary of State may give directions requiring applications for listed building consent to be referred to him instead of being dealt with by the planning authority.

(2) A direction under this section may relate either to a particular application or to applications in respect of such buildings as may be specified in the direction.

(3) An application in respect of which a direction under this section has effect shall be referred to the Secretary of State accordingly.

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(5) The decision of the Secretary of State on any application referred to him under this section shall be final.

Section 12 Duty to notify Secretary of State of applications.

(1) If a planning authority to whom application is made for listed building consent intend to grant such consent they shall , where subsection (1A) applies, first notify the Secretary of State of the application giving particulars of the works for which the consent is required.

(1A) This subsection applies where—

(a) regulations, or

(b) directions given to planning authorities by the Scottish Ministers,

provide that the application must be so notified.

(1B) Directions under subsection (1A)(b) may be given to—

(a) planning authorities generally,

(b) a particular planning authority, or

(c) a description of planning authority.

(2) The Secretary of State may within the period of 28 days beginning with the date of the notification—

(a) direct the reference of the application to him under section 11, or

(b) give notice to the authority that he requires further time in which to consider whether to require such a reference.

(3) The planning authority shall not grant listed building consent until—

(a) the period mentioned in subsection (2) has expired without the Secretary of State directing the reference of the application to him or giving them notice under paragraph (b) of that subsection, or

(b) the Secretary of State has notified them that he does not intend to require the reference of the application.

Section 13 Directions concerning notification of applications etc.

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(3) Without prejudice to sections 9 to 12, the Secretary of State may give directions to planning authorities requiring them, in such cases or classes of case as may be specified in the directions, to notify to him and to such other persons as may be so specified—

(a) any applications made to them for listed building consent, and

(b) the decisions taken by the authorities on those applications.

(4) Directions under subsection ... (3) may be given to—

(a) planning authorities generally;

(b) a particular planning authority; or

(c) a description of planning authority.

Section 14 Decision on application.

(1) Subject to the previous provisions of this Part, the planning authority or, as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if granting consent, may grant it subject to conditions.

(2) In considering whether to grant listed building consent for any works, the planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

(2A) A planning authority, if minded to grant listed building consent for any works—

(a) must consider imposing a condition specified in, or of a nature indicated in, directions given to them by the Scottish Ministers, and

(b) must not grant such consent without first satisfying the Scottish Ministers that such consideration has been given and that such a condition either will be imposed or is not needed.

(3) Any listed building consent shall (except in so far as it otherwise provides) enure for the benefit of the building and of all persons for the time being interested in it.

Section 15 Power to impose conditions on grant of listed building consent.

(1) Without prejudice to the generality of section 14(1), the conditions subject to which listed building consent may be granted may include conditions with respect to—

(a) the preservation of particular features of the building, either as part of it or after severance from it;

(b) the making good, after the works are completed, of any damage caused to the building by the works;

(c) the reconstruction of the building or any part of it following the execution of any works, with the use of original materials so far as practicable and with such alterations of the interior of the building as may be specified in the conditions.

(2) Listed building consent may also be granted subject to a condition reserving specified details of the works (whether or not set out in the application) for subsequent approval by the planning authority or, in the case of consent granted by the Secretary of State, specifying whether the reserved details are to be approved by the planning authority or by him.

(3) In granting a listed building consent a planning authority may attach to the consent a condition that no demolition of the listed building shall take place until either or both of the following requirements have been met—

(a) a planning obligation under section 75 of the principal Act for the regulation of the development of the site of the listed building in accordance with a current planning permission has been entered into and the relevant instrument by which that obligation is entered into has been recorded in the Register of Sasines or, as the case may be, registered in the Land Register of Scotland under that section ;

(b) the planning authority are satisfied that contracts have been placed either—

(i) for the redevelopment of the site, or

(ii) for its conversion to an acceptable open space,

in accordance with a current planning permission.

Section 16 Limit of duration of listed building consent.

(1) A listed building consent lapses—

(a) on the expiration of such period (beginning with the date on which the consent is granted) as the planning authority may, for the purposes of this section, specify in the consent, or

(b) if no period is so specified, on the expiration of a period of 3 years (beginning with that date),

unless the works permitted by the consent are begun before that expiration.

(1A) Subsection (1) does not apply to a listed building consent granted before the date on which section 20 of the Planning etc. (Scotland) Act 2006 came into force.

(2) For the purposes of sections 18(1)(a) and 19(1) and (2)(a)—

(a) any such specification as is mentioned in subsection (1)(a), or

(b) the effect of subsection (1) as that subsection applies in consequence of the authority electing not to make such a specification,

is to be treated as a condition subject to which the application is granted.

(3) Nothing in this section applies to any consent to the retention of works granted under section 7(3).

(4) The date of the granting or of the refusal of an application for listed building consent shall be the date on which the notice of the planning authority’s decision bears to have been signed on behalf of the authority.

Section 17 Application for variation or discharge of conditions.

(1) Any person interested in a listed building with respect to which listed building consent has been granted subject to conditions may apply to the planning authority for the variation or discharge of the conditions.

(2) The application shall indicate what variation or discharge of conditions is applied for and the provisions of sections 9 to 13, 14(3) and 18 to 20 apply to such an application as they apply to an application for listed building consent.

(3) On such an application the planning authority or, as the case may be, the Secretary of State may vary or discharge the conditions attached to the consent, and may add new conditions consequential upon the variation or discharge, as they or he think fit.

Section 18 Right to appeal against decision or failure to take decision.

(1) Where a planning authority—

(a) refuse an application for listed building consent or grant it subject to conditions,

(b) refuse an application for variation or discharge of conditions subject to which such consent has been granted or grant it and add new conditions, or

(c) refuse an application for approval required by a condition imposed on the granting of listed building consent with respect to details of works or grant it subject to conditions,

the applicant, if he is aggrieved by the decision, may appeal to the Secretary of State.

(2) A person who has made such an application may also appeal to the Secretary of State if the planning authority have not —

(a) given notice to the applicant of their decision on the application, ...

(aa) given notice to the applicant that they have exercised their power under section 10A to decline to determine the application, or

(b) in the case of such an application as is mentioned in subsection (1)(a) or (b), given notice to the applicant that the application has been referred to the Secretary of State in accordance with directions given under section 11,

within the relevant period from the date of the receipt of the application or within such extended period as may at any time be agreed upon in writing between the applicant and the authority.

(3) In this section “ the relevant period ” means—

(a) in the case of such an application as is mentioned in subsection (1)(a) or (b), such period as may be prescribed, and

(b) in the case of such an application for approval as is mentioned in subsection (1)(c), the period of two months from the date of the receipt of the application.

(4) For the purposes of the application of sections 20(1) and 58(7)(a) in relation to an appeal under subsection (2), the authority shall be treated as having refused the application in question.

Section 19 Appeals: supplementary provisions.

(1) An appeal under section 18 must be made by notice served in the prescribed manner within such period as may be prescribed.

(2) The period which may be prescribed under subsection (1) must not be less than—

(a) in the case of an appeal under section 18(1), 28 days from the receipt by the applicant of notification of the decision, or

(b) in the case of an appeal under section 18(2), 28 days from the end of the relevant period within the meaning of that section or, as the case may be, the extended period there mentioned.

(3) The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by Historic Environment Scotland under section 1.

(4) In the case of a building in respect of which a building preservation notice is in force, the notice may include a claim that the building should not be included in such a list.

(5) Regulations may provide that an appeal in respect of an application for listed building consent, or for the variation or discharge of conditions subject to which such consent has been granted, shall not be entertained unless it is accompanied by a certificate in the prescribed form as to the interests in the building to which the appeal relates.

(6) Any such regulations may include provisions corresponding to those which may be included in regulations under section 10 by virtue of section 10(2).

(7) If any person—

(a) issues a certificate which purports to comply with the requirements of regulations made by virtue of subsection (5) or (6) and which contains a statement which he knows to be false or misleading in a material particular, or

(b) recklessly issues a certificate which purports to comply with those requirements and which contains a statement which is false or misleading in a material particular,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 20 Determination of appeals.

(1) The Secretary of State may allow or dismiss an appeal under section 18, or may reverse or vary any part of the decision of the authority, whether or not the appeal relates to that part, and—

(a) may deal with the application as if it had been made to him in the first instance, and

(b) where the Scottish Ministers allow an appeal, they may direct Historic Environment Scotland to exercise its power under section 1 to amend the list compiled or approved under that section to give effect to their decision.

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(3) The decision of the Secretary of State on the appeal shall be final.

(4) Schedule 3 (which makes provision regarding the determination of certain appeals by a person appointed by the Secretary of State) applies to appeals under section 18.

Section 21 Revocation and modification of listed building consent by planning authority.

(1) If it appears to the planning authority that it is expedient to revoke or modify listed building consent granted on an application made under this Act, the authority may revoke or modify the consent to such extent as they consider expedient.

(2) In performing their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations.

(3) The power conferred by this section to revoke or modify listed building consent in respect of any works may be exercised at any time before those works have been completed, but the revocation or modification shall not affect so much of those works as has been previously carried out.

Section 22 Procedure for section 21 orders: opposed cases.

(1) Except as provided in section 23, an order made by a planning authority under section 21 shall not take effect unless it is confirmed by the Secretary of State.

(2) Where a planning authority submit an order to the Secretary of State for confirmation, they shall serve notice on—

(a) the owner of the building affected,

(b) the lessee of that building,

(c) the occupier of that building, and

(ca) Historic Environment Scotland,

(cb) such other persons as may be prescribed,

(d) any other person who in their opinion will be affected by the order.

(3) The notice shall specify the period (which must not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(4) If within that period a person on whom the notice is served so requires, the Secretary of State shall, before he confirms the order, give such an opportunity both to that person and to the planning authority.

(5) The Secretary of State may confirm any such order submitted to him either without modification or subject to such modifications as he considers expedient.

Section 23 Procedure for section 21 orders: unopposed cases.

(1) This section shall have effect where—

(a) the planning authority have made an order under section 21 revoking or modifying a listed building consent granted by them, and

(b) the owner, lessee and occupier of the land , Historic Environment Scotland, such other persons as may be prescribed and all persons who in the authority’s opinion will be affected by the order have notified the authority in writing that they do not object to the order.

(2) Where this section applies, instead of submitting the order to the Secretary of State for confirmation the authority shall—

(a) advertise in the prescribed manner the fact that the order has been made, and the advertisement shall specify—

(i) the period within which persons affected by the order may give notice to the Secretary of State that they wish an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose, and

(ii) the period at the end of which, if no such notice is given to the Secretary of State, the order may take effect by virtue of this section and without being confirmed by him,

(b) serve notice to the same effect on the persons mentioned in subsection (1)(b), and

(c) send a copy of any such advertisement to the Secretary of State not more than 3 days after its publication.

(3) A notice under subsection (2)(b) shall include a statement to the effect that no compensation is payable under section 25 in respect of an order under section 21 which takes effect by virtue of subsection (4) of this section.

(4) If—

(a) no person claiming to be affected by the order has given notice to the Secretary of State as mentioned in subsection (2)(a)(i) within the period referred to in that subsection, and

(b) the Secretary of State has not directed that the order be submitted to him for confirmation,

the order shall take effect at the end of the period referred to in subsection (2)(a)(ii) without being confirmed by the Secretary of State as required by section 22(1).

(5) The period referred to in subsection (2)(a)(i) must not be less than 28 days from the date on which the advertisement first appears.

(6) The period referred to in subsection (2)(a)(ii) must not be less than 14 days from the end of the period referred to in subsection (2)(a)(i).

Section 24 Revocation and modification of listed building consent by Secretary of State.

(1) If it appears to the Secretary of State that it is expedient that an order should be made under section 21 revoking or modifying any listed building consent granted on an application under this Act, he may himself make such an order revoking or modifying the consent to such extent as he considers expedient.

(2) In performing his functions under subsection (1) the Secretary of State shall have regard to the development plan and to any other material considerations.

(3) The Secretary of State shall not make an order under that subsection without consulting the planning authority.

(4) Where the Secretary of State proposes to make such an order he shall serve notice on—

(a) the owner of the building affected,

(b) the lessee of that building,

(c) the occupier of that building, and

(d) any other person who in his opinion will be affected by the order.

(5) The notice shall specify the period (which must not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(6) If within that period a person on whom the notice is served so requires, the Secretary of State shall, before he makes the order, give such an opportunity both to that person and to the planning authority.

(7) The power conferred by this section to revoke or modify listed building consent in respect of any works may be exercised at any time before those works have been completed, but the revocation or modification shall not affect so much of those works as has been previously carried out.

(8) An order under this section shall have the same effect as if it had been made by the planning authority under section 21 and confirmed by the Secretary of State under section 22.

Section 25 Compensation where listed building consent revoked or modified.

(1) This section shall have effect where listed building consent is revoked or modified by an order under section 21 (other than an order which takes effect by virtue of section 23).

(2) If, on a claim made to the planning authority within the prescribed time and in the prescribed manner, it is shown that a person interested in the building—

(a) has incurred expenditure in carrying out works which are rendered abortive by the revocation or modification, or

(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification,

the authority shall pay to that person compensation in respect of that expenditure, loss or damage.

(3) Subject to subsection (4), no compensation shall be paid under this section in respect of—

(a) any works carried out before the grant of the listed building consent which is revoked or modified, or

(b) any other loss or damage (not being loss or damage consisting of depreciation of the value of an interest in land) arising out of anything done or omitted to be done before the grant of that consent.

(4) For the purposes of this section, expenditure incurred in the preparation of plans for the purposes of any works, or upon other similar matters preparatory to any works, shall be taken to be included in the expenditure incurred in carrying out those works.

Section 26 Compensation for loss or damage caused by service of building preservation notice.

(1) This section applies where a building preservation notice ceases to have effect without the building having been included in a list compiled or approved by Historic Environment Scotland under section 1.

(2) Any person who at the time when the notice was served had an interest in the building shall, on making a claim to the planning authority within the prescribed time and in the prescribed manner, be entitled to be paid compensation by the authority in respect of any loss or damage directly attributable to the effect of the notice.

(3) The loss or damage in respect of which compensation is payable under subsection (2) shall include a sum payable in respect of any breach of contract caused by the necessity of discontinuing or countermanding any works to the building on account of the building preservation notice being in force with respect to it.

Section 27 General provisions as to compensation for depreciation under this Part.

(1) For the purpose of assessing any compensation to which this section applies, the rules set out in section 12 of the Land Compensation (Scotland) Act 1963 shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(2) This section applies to any compensation which is payable under section 25 or 26 in respect of depreciation of the value of an interest in land.

(3) Where an interest in land is subject to a heritable security—

(a) any compensation to which this section applies which is payable in respect of depreciation of the value of that interest, shall be assessed as if the interest were not subject to the security,

(b) a claim for any such compensation may be made by any creditor in a heritable security over the interest, but without prejudice to the making of a claim by the person entitled to the interest,

(c) no compensation to which this section applies shall be payable in respect of the interest of the creditor in the heritable security (as distinct from the interest which is subject to the security), and

(d) any compensation to which this section applies which is payable in respect of the interest which is subject to the heritable security shall be paid to the creditor in the security or, if there is more than one such creditor, to the creditor whose security ranks first, and shall in either case be applied by him as if it were proceeds of sale by him under the powers competent to creditors in heritable securities.

(4) Except in so far as may be otherwise provided by any regulations made under this Act, any question of disputed compensation under section 25 or 26 shall be referred to and determined by the Lands Tribunal.

(5) In relation to the determination of any such question, the provisions of sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply, subject to any necessary modifications and to the provisions of any regulations made under this Act.

Section 28 Purchase notice on refusal or conditional grant of listed building consent.

(1) Where—

(a) listed building consent in respect of a building is refused or is granted subject to conditions, or is revoked or modified by an order under section 21 or 24, and

(b) any owner or lessee of the building claims that—

(i) the conditions mentioned in subsection (2) are satisfied with respect to it and any land comprising the building, or contiguous or adjacent to it, and owned or occupied with it, and

(ii) the conditions mentioned in subsection (3) are satisfied with respect to that land,

he may, within the prescribed time and in the prescribed manner, serve on the planning authority in whose district the building and land is situated a notice (in this Act referred to as a “ listed building purchase notice ”) requiring that authority to purchase his interest in the building and the land in accordance with sections 29 to 33.

(2) The conditions mentioned in subsection (1)(b)(i) are—

(a) that the building and land in respect of which the notice is served have become incapable of reasonably beneficial use in their existing state,

(b) in a case where listed building consent has been granted subject to conditions with respect to the execution of the works or has been modified by the imposition of such conditions, that the building and land cannot be rendered capable of such use by the carrying out of the works in accordance with those conditions, and

(c) in any case, that the building and land cannot be rendered capable of such use by the carrying out of any other works for which listed building consent has been granted or for which the planning authority or the Secretary of State has undertaken to grant such consent.

(3) The conditions mentioned in subsection (1)(b)(ii) are that the use of the land is substantially inseparable from that of the building and that it ought to be treated, together with the building, as a single holding.

(4) Where, for the purpose of determining whether the conditions mentioned in subsection (2) are satisfied in relation to any building and land, any question arises as to what is or would in any particular circumstances be a reasonably beneficial use of the building and land, no account shall be taken of any prospective use which would involve the carrying out of development (other than any development specified in paragraph 1 or 2 of Schedule 11 to the principal Act) or of any works requiring listed building consent which might be executed to the building, other than works for which the planning authority or the Secretary of State has undertaken to grant such consent.

Section 28A Purchase notices: Crown land

(1) A listed building purchase notice may be served in respect of Crown land only as mentioned in this section.

(2) The owner of a private interest in Crown land must not serve a listed building purchase notice unless—

(a) he first offers to dispose of his interest to the appropriate authority on equivalent terms, and

(b) the offer is refused by the appropriate authority.

(3) The appropriate authority may serve a listed building purchase notice in relation to the following land—

(a) land belonging to Her Majesty in right of her private estates,

(aa) land which forms part of the property, rights and interests to which section 90B(5) of the Scotland Act 1998 applies,

(b) land which forms part of the Crown Estate.

(4) An offer is made on equivalent terms if the price payable for the interest is equal to (and, in default of agreement, determined in the same manner as) the compensation which would be payable in respect of it if it were acquired in pursuance of a listed building purchase notice.

Section 29 Action by planning authority on whom listed building purchase notice served.

(1) The planning authority on whom a listed building purchase notice is served under section 28 shall serve on the owner or lessee by whom the notice was served a notice stating—

(a) that the authority are willing to comply with the purchase notice,

(b) that another planning authority or statutory undertakers specified in the notice under this subsection have agreed to comply with it in their place, or

(c) that for reasons specified in the notice under this subsection the authority are not willing to comply with the purchase notice and have not found any other planning authority or statutory undertakers who will agree to comply with it in their place, and that they have sent to the Secretary of State a copy of the purchase notice and of the notice under this subsection.

(2) A notice under subsection (1) must be served before the end of the period of 3 months beginning with the date of service of the listed building purchase notice.

(3) Where the planning authority on whom a listed building purchase notice is served by an owner or lessee have served on him a notice in accordance with subsection (1)(a) or (b) the authority, or the other planning authority or statutory undertakers specified in the notice, as the case may be, shall be deemed—

(a) to be authorised to acquire the interest of the owner or lessee compulsorily in accordance with the provisions of section 42, and

(b) to have served a notice to treat in respect of it on the date of service of the notice under that subsection.

(4) Where the planning authority propose to serve such a notice as is mentioned in subsection (1)(c), they shall first send to the Secretary of State a copy of—

(a) the proposed notice, and

(b) the listed building purchase notice which was served on them.

Section 30 Procedure on reference of listed building purchase notice to Secretary of State.

(1) Where a copy of a listed building purchase notice is sent to the Secretary of State under section 29(4), he shall consider whether to confirm the notice or to take other action under section 31 in respect of it.

(2) Before confirming such a notice or taking such other action, the Secretary of State shall give notice of his proposed action—

(a) to the person who served the notice,

(b) to the planning authority on whom it was served, and

(c) if the Secretary of State proposes to substitute any other planning authority or statutory undertakers for the planning authority on whom the notice was served, to them.

(3) A notice under subsection (2) shall specify the period (which must not be less than 28 days from its service) within which any of the persons, authorities or statutory undertakers on whom it is served may require the Secretary of State to give them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(4) If within that period any of those persons, authorities or statutory undertakers so requires, the Secretary of State shall, before he confirms the listed building purchase notice or takes any other action under section 31 in respect of it, give each of them such an opportunity.

(5) If, after any of those persons, authorities or statutory undertakers have appeared before and been heard by the appointed person, or the persons, authorities and statutory undertakers concerned have agreed to dispense with such a hearing, it appears to the Secretary of State to be expedient to take action under section 31 otherwise than in accordance with the notice given by him, the Secretary of State may take that action accordingly.

(6) In this section and sections 31 to 33, “ land ” means the building and the land in respect of which the notice under section 28(1) is served.

Section 31 Action by Secretary of State in relation to listed building purchase notice.

(1) Subject to the following provisions of this section, if the Secretary of State is satisfied that the conditions specified in section 28(2)(a) to (c) are satisfied in the case of any listed building purchase notice, he shall confirm the notice.

(2) If the Secretary of State is satisfied that those conditions are fulfilled only in respect of part of the land, he shall confirm the notice only in respect of that part and the notice shall have effect accordingly.

(3) The Secretary of State shall not confirm the notice unless he is satisfied that the land comprises such land contiguous or adjacent to the building as is in his opinion required—

(a) for preserving the building or its amenities,

(b) for affording access to it, or

(c) for its proper control or management.

(4) If it appears to the Secretary of State to be expedient to do so he may, instead of confirming the notice—

(a) in the case of a notice served on account of the refusal of listed building consent for any works, grant such consent for those works,

(b) in the case of a notice served on account of such consent being granted subject to conditions, revoke or amend those conditions so far as it appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of those works,

(c) in the case of a notice served on account of such consent being revoked by an order under section 21 or 24, cancel the order revoking the consent, or

(d) in the case of a notice served on account of such consent being modified by such an order by the imposition of conditions, revoke or amend those conditions so far as appears to him to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of the works in respect of which the consent was granted.

(5) If it appears to the Secretary of State that the land, or any part of it, could be rendered capable of reasonably beneficial use within a reasonable time by the carrying out—

(a) of any other works for which listed building consent ought to be granted, or

(b) of any development for which planning permission ought to be granted,

he may, instead of confirming the listed building purchase notice (or confirming it so far as it relates to that part), direct that if an application is made for such consent for those works, or as the case may be for planning permission for that development, it shall be granted.

(6) If it appears to the Secretary of State, having regard to the probable ultimate use of the building or its site, that it is expedient to do so he may, if he confirms the notice, modify it in relation to either the whole or any part of the land, by substituting another planning authority or statutory undertakers for the authority on whom the notice was served.

(7) Any reference in section 30 to the taking of action by the Secretary of State under this section includes a reference to the taking by him of a decision not to confirm the purchase notice on the grounds that any of the conditions referred to in subsection (1) of this section are not satisfied.

Section 32 Effect of Secretary of State’s action in relation to listed building purchase notice.

(1) Where the Secretary of State confirms a listed building purchase notice, the authority on whom the notice was served shall be deemed—

(a) to be authorised to acquire the owner’s or lessee’s interest in the land compulsorily in accordance with the provisions of section 42, and

(b) to have served a notice to treat in respect of it on such date as the Secretary of State may direct.

(2) If before the end of the relevant period the Secretary of State has neither—

(a) confirmed the listed building purchase notice, nor

(b) notified the owner or lessee by whom it was served that he does not propose to confirm it, nor

(c) taken any such action in respect of it as is mentioned in subsection (4) or (5) of section 31,

the notice shall be deemed to be confirmed at the end of that period and the authority on whom the notice was served shall be deemed to have been authorised as is mentioned in subsection (1)(a) and to have served a notice to treat in respect of the owner’s or lessee’s interest at the end of that period.

(3) Where a listed building purchase notice is confirmed in respect of only part of the land, references in this section to the owner’s or lessee’s interest in the land are references to the owner’s or lessee’s interest in that part.

(4) Where a listed building purchase notice is modified under section 31(6) by the substitution of another planning authority or statutory undertakers for the authority on whom the notice was served, the reference in subsection (1) to that authority is to that other planning authority or those statutory undertakers.

(5) In this section “ the relevant period ” means, subject to subsection (6)—

(a) the period of 9 months beginning with the date of the service of the listed building purchase notice, or

(b) if it ends earlier, the period of 6 months beginning with the date on which a copy of the purchase notice was sent to the Secretary of State.

(6) The relevant period does not run if the Secretary of State has before him at the same time both—

(a) a copy of the listed building purchase notice sent to him under section 29(4), and

(b) a notice of appeal under section 18 or 35 relating to any of the land to which the purchase notice relates.

(7) Where any decision by the Secretary of State to confirm or not to confirm a listed building purchase notice (including any decision to confirm the notice only in respect of part of the land, or to give any direction as to the granting of listed building consent or planning permission) is quashed under section 58, the notice shall be treated as cancelled, but the owner or lessee may serve a further notice in its place.

(8) For the purposes of determining whether such a further notice has been served within the period prescribed for the service of listed building purchase notices, the decision concerning listed building consent on account of which the notice has been served shall be treated as having been made on the date on which the decision of the Secretary of State was quashed.

Section 33 Reduction of compensation on acquisition where section 25 compensation payable.

Where compensation is payable under section 25 in respect of expenditure incurred in carrying out any works to a building, any compensation which then becomes payable in respect of the acquisition of an interest in the land in pursuance of a listed building purchase notice shall be reduced by an amount equal to the value of those works.

Section 34 Power to issue listed building enforcement notice.

(1) Where it appears to the planning authority—

(a) that any works have been, or are being, executed to a listed building in their district, and

(b) that the works are such as to involve a contravention of section 8(1) or (2),

they may, if they consider it expedient to do so having regard to the effect of the works on the character of the building as one of special architectural or historic interest, serve a notice under this section (in this Act referred to as a “ listed building enforcement notice ”).

(1A) A listed building enforcement notice shall specify the alleged contravention and shall (either or both)—

(a) specify any works falling within subsection (1) which the authority requires to cease,

(b) require steps falling within subsection (2) and specified in the notice to be taken.

(2) Those steps are —

(a) for restoring the building to its former state,

(b) if the authority consider that such restoration would not be reasonably practicable or would be undesirable, for executing such further works specified in the notice as they consider are required to alleviate in a manner acceptable to them the effect of the works which were carried out without listed building consent, or

(c) for bringing the building to the state it would have been in if the terms and conditions of any listed building consent for the works had been complied with.

(3) In considering whether such restoration is undesirable under subsection (2)(b), the authority shall have regard to the desirability of preserving—

(a) the character of the building, or

(b) its features of architectural or historical interest.

(4) Where such further works as are mentioned in subsection (2)(b) have been carried out on a building, listed building consent shall be deemed to have been granted in respect of the works carried out on that building.

(5) A listed building enforcement notice—

(a) shall specify the date upon which it is to take effect and, subject to section 35(3), shall take effect on that date, and

(b) shall specify the period (the “ period for compliance ”) within which —

(i) any works required to cease must cease,

(ii) any steps required to be taken must be taken,

and may specify different periods for different works or steps.

and, where different periods apply to different steps, references in this Act to the period for compliance with a listed building enforcement notice, in relation to any step, are to the period within which the step is required to be taken.

(5A) Where different periods apply to different works or steps, references in this Act to the period for compliance with a listed building enforcement notice, in relation to any works or step, are to the period within which the works are required to cease or the step is required to be taken.

(5B) The date specified in the notice under subsection (5)(a) must be at least 28 days after the date on which the notice is served.

(6) A copy of a listed building enforcement notice shall be served—

(a) on the owner, on the lessee and on the occupier of the building to which it relates, and

(b) on any other person having an interest in the building, being an interest which in the opinion of the authority is materially affected by the notice.

(7) The planning authority may—

(a) withdraw a listed building enforcement notice (without prejudice to their power to issue another), or

(b) waive or relax any requirement of such a notice and, in particular, extend the period specified in accordance with subsection (5),

and the powers conferred by this subsection may be exercised whether or not the notice has taken effect.

(8) The planning authority shall, immediately after exercising the powers conferred by subsection (7), give notice of the exercise to every person who has been served with a copy of the listed building enforcement notice or would, if the notice were reissued, be served with a copy of it.

(9) Every planning authority shall keep available for public inspection free of charge at reasonable hours and at a convenient place a list containing particulars of any building in their district in respect of which a listed building enforcement notice has been served.

Section 35 Appeal against listed building enforcement notice.

(1) A person on whom a listed building enforcement notice is served or any other person having an interest in the building to which it relates may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds—

(a) that the building is not of special architectural or historic interest;

(b) that the matters alleged to constitute a contravention of section 8(1) or (2) have not occurred;

(c) that those matters (if they occurred) do not constitute such a contravention;

(d) that—

(i) works to the building were urgently necessary in the interests of safety or health, or for the preservation of the building,

(ii) it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter, and

(iii) the works carried out were limited to the minimum measures immediately necessary;

(e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted;

(f) that copies of the notice were not served as required by section 34(6);

(g) except in relation to such a requirement as is mentioned in section 34(2)(b) or (c), that the requirements of the notice exceed what is necessary for restoring the building to its condition before the works were carried out;

(h) that the period specified in the notice as the period within which any step required by the notice is to be taken falls short of what should reasonably be allowed;

(i) that the steps required by the notice for the purpose of restoring the character of the building to its former state would not serve that purpose;

(ia) that the cessation of any works required by the notice exceeds what is necessary to remedy the contravention of section 8(1) or (2),

(j) that steps required to be taken by virtue of section 34(2)(b) exceed what is necessary to alleviate the effect of the works executed to the building;

(k) that steps required to be taken by virtue of section 34(2)(c) exceed what may reasonably be required to bring the building to the state in which it would have been if the terms and conditions of the listed building consent had been complied with.

(2) An appeal under this section shall be made ...—

(a) by giving written notice of the appeal to the Secretary of State before the date specified in the listed building enforcement notice as the date on which it is to take effect, or

(b) by sending such notice to him in a properly addressed and prepaid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date ; or

(c) by sending such notice to them using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to them before that date

(3) Where an appeal is brought under this section the notice shall be of no effect pending the final determination or withdrawal of the appeal.

(4) A person who gives notice of appeal under this section shall submit to the Secretary of State, either when giving the notice or within such time as may be prescribed, a statement in writing—

(a) specifying the grounds on which he is appealing against the listed building enforcement notice, and

(b) giving such further information as may be prescribed.

(5) Schedule 3 (which makes provision regarding the determination of certain appeals by a person appointed by the Secretary of State) applies in relation to appeals under this section.

Section 36 Appeals: supplementary provisions.

(1) The Secretary of State may prescribe the procedure to be followed on appeals under section 35, and may in particular—

(a) require the planning authority to submit, within such time as may be prescribed, a statement indicating the submissions which they propose to put forward on the appeal,

(b) specify the matters to be included in such a statement,

(c) require the authority or the appellant to give such notice of such an appeal as may be prescribed to such persons as may be prescribed, and

(d) require the authority to send to the Secretary of State, within such period from the date of the bringing of the appeal as may be prescribed, a copy of the enforcement notice and a list of the persons served with copies of it.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 37 Determination of appeals under section 35.

(1) On the determination of an appeal under section 35 the Secretary of State shall give directions for giving effect to the determination, including where appropriate directions for quashing the listed building enforcement notice.

(2) On such an appeal the Secretary of State—

(a) may—

(i) correct any defect, error or misdescription in the listed building enforcement notice, or

(ii) vary the terms of the listed building enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the planning authority, and

(b) in a case where it would otherwise be a ground for determining the appeal in favour of the appellant that a person required by section 34(6) to be served with a copy of the notice was not served, may disregard that fact if he is satisfied that the person has not been substantially prejudiced by the failure to serve him.

(3) The Secretary of State may—

(a) dismiss such an appeal if the appellant fails to comply with section 35(4) within the prescribed time;

(b) allow such an appeal or quash the listed building enforcement notice if the planning authority fail to comply within the prescribed period with any requirement imposed by regulations made by virtue of section 36(1)(a), (b) or (d).

(4) On the determination of an appeal under section 35 the Secretary of State may—

(a) grant listed building consent for the works to which the listed building enforcement notice relates,

(b) discharge any condition subject to which such consent was granted and substitute any other condition, whether more or less onerous, or

(c) direct Historic Environment Scotland to exercise its power under section 1 to amend the list compiled or approved under that section to give effect to that determination.

(5) Any listed building consent granted by the Secretary of State under subsection (4) shall be treated as granted on an application for the same consent under section 9.

(6) The validity of a listed building enforcement notice shall not, except by way of appeal under section 35, be questioned in any proceedings whatsoever on the grounds specified in section 35(1)(b) and (f).

Section 38 Execution of works required by listed building enforcement notice.

(1) If any of the steps specified in the listed building enforcement notice have not been taken within the period for compliance with the notice, the authority may—

(a) enter on the land and take those steps, and

(b) recover from the person who is then the owner or lessee of the land any expenses reasonably incurred by them in doing so.

(2) Where a listed building enforcement notice has been served in respect of a building—

(a) any expenses incurred by the owner, lessee or occupier of a building for the purpose of complying with it, and

(b) any sums paid by the owner or lessee of a building under subsection (1) in respect of expenses incurred by the planning authority in taking steps required by it,

shall be deemed to be incurred or paid for the use and at the request of the person who carried out the works to which the notice relates.

(3) If on a complaint by the owner of any land it appears to the sheriff that the occupier of the land is preventing the owner from carrying out work required to be carried out by a listed building enforcement notice, the sheriff may by warrant authorise the owner to go on the land and carry out that work.

(4) A planning authority taking steps under subsection (1) may sell any materials removed by them from the land unless those materials are claimed by the owner within 3 days of their removal.

(5) After any such sale the planning authority shall pay the proceeds to the owner less the expenses recoverable by them from him.

(6) Where a planning authority seek, under subsection (1), to recover any expenses from a person on the basis that he is the owner of any land, and such person proves that—

(a) he is receiving the rent in respect of that land merely as trustee, tutor, curator, factor or agent of some other person, and

(b) he has not, and since the date of the service on him of the demand for payment has not had, in his hands on behalf of that other person sufficient money to discharge the whole demand of the authority,

his liability shall be limited to the total amount of the money which he has or has had in his hands on behalf of that other person.

(7) A planning authority who by reason of subsection (6) have not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent may recover any unpaid balance from the person on whose behalf the rent is received.

(8) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 39 Offence where listed building enforcement notice not complied with.

(1) Where, after the end of the period for compliance with the notice, any step required by a listed building enforcement notice to be taken has not been taken or any works required by the notice to cease have not ceased , the person who is for the time being owner of the land is in breach of the notice.

(2) If at any time the owner of the land is in breach of a listed building enforcement notice he shall be guilty of an offence.

(3) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.

(4) In proceedings against any person for an offence under this section, it shall be a defence for him to show—

(a) that he did everything he could be expected to do to secure that all the steps required by the notice were taken or that all works required by the notice to cease were ceased, , or

(b) that he was not served with a copy of the listed building enforcement notice and was not aware of its existence.

(5) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £20,000, and

(b) on conviction on indictment, to a fine.

(6) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

Section 39A Fixed penalty notice where listed building enforcement notice not complied with

(1) Where a planning authority have reason to believe that, by virtue of subsection (1) of section 39, a person is in breach of a listed building enforcement notice they may, if the conditions in subsection (9) are satisfied, serve on the person a fixed penalty notice as respects that breach.

(2) The fixed penalty notice is to specify (either or both)—

(a) the works specified, under subsection (1A) of section 34, in the listed building enforcement notice which have not ceased,

(b) the step specified, under that subsection, in the listed building enforcement notice which has not been taken.

(3) No more than one fixed penalty notice may be served on a person as respects a breach by the person of a listed building enforcement notice.

(4) For the purposes of this section, a “fixed penalty notice” is a notice offering the person the opportunity of discharging any liability to conviction for an offence under section 39 as respects the breach of the listed building enforcement notice.

(5) The person discharges any such liability by paying to the planning authority, within the relevant period, a penalty of a prescribed amount specified in the fixed penalty notice.

(6) The relevant period mentioned in subsection (5) is the period of 30 days immediately following the day on which the fixed penalty notice is served.

(7) But if payment is made within the first 15 days of the period mentioned in subsection (6) the amount payable is reduced by 25%.

(8) The fixed penalty notice is to identify the period mentioned in subsection (6) and is also to state that if payment is made within the first 15 days of that period the amount payable is reduced by 25%.

(9) The conditions are that the fixed penalty notice—

(a) is served within the period of 6 months which immediately follows the period for compliance with the listed building enforcement notice,

(b) is not served after the person has been charged with an offence under section 39 as respects the breach of the listed building enforcement notice.

(10) During the period mentioned in subsection (6) it is not competent to commence proceedings against the person for an offence under section 39 as respects that breach.

(11) If the amount (or as the case may be the reduced amount) is timeously paid it is not competent to commence proceedings against the person for an offence under section 39 as respects that breach.

(12) A penalty received by a planning authority by virtue of subsection (5) is to accrue to that authority.

(13) In prescribing an amount for the purposes of subsection (5), the Scottish Ministers may make different provision for different cases or different classes of case, including provision for different amounts by reference to previous breaches of listed building enforcement notices relating to the same steps or works.

Section 40 Effect of listed building consent on listed building enforcement notice.

(1) If, after the issue of a listed building enforcement notice, consent is granted under section 7(3)—

(a) for the retention of any work to which the listed building enforcement notice relates, or

(b) permitting the retention of works without complying with some condition subject to which a previous listed building consent was granted,

the listed building enforcement notice shall cease to have effect in so far as such work is or such works are required by the notice to cease, or in so far as it requires steps to be taken involving the works not being retained or, as the case may be, for complying with that condition.

(2) The fact that such a notice has wholly or partly ceased to have effect under subsection (1) shall not affect the liability of any person for an offence in respect of a previous failure to comply with that notice.

Section 41 Enforcement by Secretary of State.

(1) If it appears to the Secretary of State that it is expedient that a listed building enforcement notice should be served in respect of any land, he may himself serve such a notice under section 34.

(2) A listed building enforcement notice served by the Secretary of State shall have the same effect as a notice served by the planning authority.

(3) The Secretary of State shall not serve such a notice without consulting the planning authority.

(4) The provisions of this Act relating to listed building enforcement notices apply, so far as relevant, to a listed building enforcement notice served by the Secretary of State as they apply to a listed building enforcement notice served by a planning authority, but with the substitution for any reference to the planning authority of a reference to the Secretary of State, and any other necessary modifications.

Section 41A Stop notices

(1) Subsection (2) applies where the planning authority consider it expedient that any relevant works should cease before the expiry of the period for compliance with a listed building enforcement notice.

(2) The authority may, when they serve the copy of the listed building enforcement notice or afterwards, serve a notice (in this Act referred to as a “ stop notice ”) prohibiting the execution of the relevant works to the listed building to which the enforcement notice relates, or to any part of that building specified in the stop notice.

(3) In this section and sections 41B and 41D, “ relevant works ” means any works specified in the listed building enforcement notice as works which the planning authority require to cease and any works carried out as part of, or associated with, such works.

(4) A stop notice may not be served if the listed building enforcement notice has taken effect.

(5) A stop notice must specify the date when it is to come into effect, and that date—

(a) must not be earlier than 3 days after the date when the notice is served, unless the planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice, and

(b) must not be later than 28 days from the date when the notice is first served on any person.

(6) A stop notice may be served by the planning authority on any person who appears to them to have an interest in the building or who is executing, or causing to be executed, the relevant works specified in the listed building enforcement notice.

(7) The planning authority may at any time withdraw a stop notice (without prejudice to their power to serve another) by notice which must be—

(a) served on all persons who were served with the stop notice, and

(b) publicised by displaying it for 7 days in place of all or any site notices (within the meaning of section 41B(4)).