East Lothian has more than its share of handsome old buildings: Georgian townhouses in Haddington, harbour properties in Dunbar, the villas and cottages of North Berwick and Gullane, converted steadings out towards East Linton. A good number are listed, and buyers are often surprised to find that listing is not a decorative honour. It is a legal regime, and it transfers with the keys.

What is a listed building?

Historic Environment Scotland defines a listed building as “a Protected Historic Place designated by Historic Environment Scotland for its architectural or historic interest.”   

Scotland has around 47,000 listed building records. Buildings sit in Category A, B or C according to their relative importance. While the category does not change the level of legal protection – a Category C building is protected in the same way as a Category A one – the category is considered when the council assesses proposed works and affects whether Historic Environment Scotland has to be consulted.

What the listing actually covers

Every owner is responsible for repairing and maintaining their property. The difference with a listed building is that the responsibility is enforceable.

If an unlisted building is allowed to deteriorate, the council will generally only step in once it becomes dangerous or starts to blight the area.

With a listed building the council can act to preserve the building itself, serving a repairs notice setting out the works reasonably necessary for its proper preservation and, if those are not carried out, moving to compulsory purchase. Where a building has been deliberately left derelict, the compensation payable can be reduced to a minimum.

Unless the listing says otherwise, it covers the whole building, inside and out. Cornices, chimneypieces, panelling, staircases, shutters and plasterwork are all part of it, as are extensions and anything attached to the building.

Structures that are not attached but sit within the curtilage, or boundaries, are also caught if they predate 1948, which routinely brings in boundary walls, railings, gate piers, coach houses and outbuildings. 

What needs consent

Consent is separate from planning permission and from a building warrant. A project can need all three, applied for separately, and obtaining one does not imply the others. And none of it is quick. Applications are advertised for 21 days, Historic Environment Scotland is a statutory consultee in certain cases, and where the council is minded to approve works to an A or B listed building, or any demolition, it must refer the case to Scottish Ministers first. It can take months rather than weeks. The flashpoints are predictable: replacement windows, external wall insulation, solar panels, rooflights, removal of internal walls and fireplaces, and cement used where lime belongs.
 
More specifically, you will need listed building consent from the planning authority to demolish, alter or extend a listed building, internally or externally, where the works would affect its character. Applying is free, which is a small mercy given everything else.

Like-for-like repairs using matching materials usually do not need consent, but Historic Environment Scotland and every planning department in the country give the same advice:
ask before you start. The line between a repair and an alteration is not always where an owner assumes it is. In East Lothian, stone cleaning requires consent, which catches people out regularly.

The liability you inherit

Carrying out unauthorised works to a listed building is a criminal offence. Any person who carries out work, or causes the work to be carried out, may be liable:

• on summary conviction - to imprisonment for up to 6 months, or a fine of up to £50,000, or both, or
• on conviction on indictment - to imprisonment for a term of up to 2 years or a fine, or both.

A listed building enforcement notice notifies the building’s owner of unauthorised work that needs to be remedied. There is no time limit on listed building enforcement in Scotland. Unauthorised works never become lawful with the passage of time in the way an ordinary planning breach eventually can. So a sunroom added in 1998 without consent is still unauthorised today, and the person who has to deal with it is the current owner. Failing to comply with a notice is itself an offence, and the council can carry out the work and recover its costs.

Why the usual checks do not go far enough

Nothing in your title deeds will tell you that a building is listed but you can search for listed buildings in Scotland through Historic Environment Scotland’s portal.

Other ways to check for information on a property include:

A property enquiry certificate typically reports planning applications from the last five years and building warrants from the last twenty-five, though the window varies between councils. Set that against an enforcement power with no time limit at all and the gap is obvious.

The Property Questionnaire in the Home Report asks a seller whether their property is listed or sits in a conservation area, and about alterations made during their ownership. Those answers reflect what the seller believes, it not a warranty; someone who bought the house in 2005 may have no idea what happened to it in 1992.

The Single Survey in the Home Report, meanwhile, is a general condition report; a stone-built listed property deserves a fuller survey from someone with conservation experience.

If you are buying a listed building, your solicitor should be raising specific enquiries about every visible alteration, asking for the consents and for evidence that any conditions were purified, and including appropriate warranties in the missives.

Where something cannot be evidenced, the options are a retrospective application, an indemnity policy, a retention or an adjustment to the price. Scottish councils do not generally issue letters of comfort for unauthorised works to listed buildings, so the honest route is an application that may well be refused.

The costs nobody budgets for

Repairs, maintenance and alterations to a listed building are all charged at the standard VAT rate of 20 per cent. There is no listed building VAT relief for a private owner.

Materials and trades cost more too: lime mortar, natural slate, sash window refurbishment and conservation-accredited professionals all carry a premium and often long lead times. Grants exist but should not be built into the budget, since the Historic Environment Scotland programme expects most applicants to be not-for-profit organisations and private owners are rarely prioritised.

Insurance is also something people often got wrong. Rebuild figures can sit well above market value and well above what a standard policy assumes. Repair periods run longer, which matters for alternative accommodation cover. A specialist policy is usually the right answer.

Owners should also be aware that listed buildings in Scotland are not exempt from the requirement for an Energy Performance Certificate, although Scottish EPCs remain a source of information rather than a standard you must meet. 

How Paris Steele Can Help

None of this is a reason not to buy a listed building. Scotland’s historic buildings survive largely because private owners look after them, and East Lothian is much better for it. It is a reason to go in with your eyes open, and to have the right enquiries raised before missives conclude rather than after.

At Paris Steele, our Residential Property team raises conveyancing enquiries every working day, and because we are also an estate agency we see these properties from both the legal and the practical side. We can check the consent history, frame the enquiries and warranties that matter, and tell you plainly what is and is not evidenced.

If you have a question about your current property, or would like help buying one, call our North Berwick office on 01620 892138 or our Dunbar office on 01368 862746, or contact us through the website.