Forcedentrytolisted buildings:howtodo it This article discusses the procedures for gaining forced entry to listed buildings where access has been denied. Although these are 'last-resort' powers where uncooperative owners are involved, they may be of particular interest to those dealing with intractable buildings-at-risk. Local planning authorities can gain ent1y to listed buildings by force where the owner has refused permission. The powers to do so are set out under Section 88 of the Planning (Listed Buildings & Conservation Areas) Act 1990, and additional powers under Sections SSA and 88B were granted by Schedule 3 of the Planning & Compensation Act 1990. The most likely use of these provisions is in connection with Urgent Works under Section 54 and full Repair Notices under Section 48. Forced entry may also be gained for the purposes of issuing or serving any order or notice relating to listing, control of works, applications or conditions of consent or appeals or revocations (Sections 1-26 of the Act). As these powers may sometime be needed in emergency, it should hardly be necessary to state that the appropriate officers of the LPA should have delegated authority to seek entry to unoccupied Listed buildings where this cannot be obtained by agreement. Authority to enter In practice, the person duly authorised in writing under Section 88(2) can be any officer of the planning authority, but will usually be the Conservation Officer. Entry requires a Magistrates Warrant. This will usually refer to a named individual (see below) but can also permit entry by any other person authorised in writing by the LPA,including for example, officers from the Valuation Office or a structural engineering consultant. In Greater London the powers extend to English Heritage officers. Resorting to the use of a Warrant under Section 88 should be seen as a last resort. To convince the Magistrates that forced entry is necessary, the LPA needs to show what steps have already been taken to gain access by agreement and why these have failed. A short chronology giving dates of letters or meetings (and outcomes) should be prepared in each case. This process assumes a situation other than an emer16 gency where proof of the urgency (and any refusal) is crucial. Preliminary steps Initially, the LPA should write to the owner suggesting alternative dates and times required for access to the building; making clear the purpose, by whom the inspection would be made and the approximate duration on site. A written reply within a specific period should be required. Alternatively (or subsequently) several dates and times could be requested convenient to the owner, again requiring a written response. If this fails, an additional letter should then ask if the owner intends to volunteer to open up the building at any stage. If all these options prove 'inconvenient' or 'inappropriate' to the owner, the LPA could offer other arrangements such as collection and return of the keys etc. Section SSA (3) states that admission to the land shall be regarded as having been refused if no reply is received within reasonable period. It is therefore essential to request formal written replies from the owner and note refusals or failures to do so. A strict timetable should be adhered to if possible. Negotiations over access should not be allowed to become protracted. In most cases, it should be possible to determine within three months if access will be by agreement. If voluntary access is not achieved quickly it is unlikely to be achieved at all. A penultimate letter to the owner should explain that a Warrant is to be applied for, but not necessarily when. This avoids a last minute offer to open the building up which may withdrawn on the day. A final letter should state that the Warrant has been obtained and the likely day and time when entry will be made. Under Section 88B(1), twenty-four hours notice must be given to the occupier if the building is occupied. This does not apply if it is vacant. Although Section SSA (4)(b) states that access shall be at a reasonable hour, the Warrant will not specify a time and the LPA is not duty bound to enter at the time or on the date notified to the owner. The owner cannot, for example, sustain objections if entry has been made by the LPA a few minutes prior to the time notified. Preparing to obtain the Warrant Obtaining a Warrant under historic building powers is unusual. A Magistrates Court is more likely to be familiar with, for example, Police Warrants to search for drugs or stolen goods. While the Court will usually refer to Stone's Justices Manual, this will be unlikely to include the details of Section 88 or the additional powers under Sections SSA and B. It is helpful if photocopies of these Sections are made available to the Court prior to the application being made. A Warrant can usually be obtained at short notice and the local authority Solicitor can arrange this with the Cou 1t officials. The process will usually take 10-15 minutes in front of a Magistrate. A formal statement of the kind usually associated with Appeal Proofs of Evidence is not necessary, but a short statement should give the name and position of the officer whose name will appear on the Warrant (ie the person authorised to enter the building). It should also contain the listed grade and date of listing, the brief history of its occupancy and condition, a chronology of attempts to agree voluntary access and the response (if any) in each instance. The Magistrate may not require to see this or for it to be read out, but it will be a useful aide memoir should any questions be asked during the application. Preparing the information The documentation put before the Court is known as an Information (Section 88A(l)). A typical example will be as follows: Context58 June1998
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