Commentary on Sections Part 3 — Buildings of special architectural or historic interest Chapter 1 — Listing buildings of special interest Section 78 — Consultation before listing or de-listing buildingSection 79 — Interim protection pending decision whether to list buildingSchedule 7 — End of interim protection or temporary listing for buildings
277.Section 78 puts in place a formal structure for consultation on the Welsh Ministers’ proposals to list or de-list a building. It makes provision for inviting the persons identified in subsection (2) to make written representations on the proposed amendment to the list to the Welsh Ministers.
278.The service of a notice of a proposal to amend the list by adding a building will trigger interim protection under section 79. In that case, section 78(3)(b) requires the notice to explain the effect of interim protection and specify the date upon which interim protection takes effect.
279.Any building being considered for listing by the Welsh Ministers, unless already a scheduled monument (section 79(7)), will enjoy interim protection under section 79 from the beginning of the day specified in the notice served under section 78(1).
280.Section 79(2) provides that this Act (except certain specified sections) and the 1990 Planning Act apply to any building under interim protection as if it were a listed building. It will, therefore, be an offence to undertake works that alter its character without listed building consent and the full range of enforcement powers in Chapter 4 will be available to a planning authority or the Welsh Ministers in the event of unauthorised works. Section 118, however, does not apply to a building under interim protection. Interim protection will afford protection to a building during the consultation period, for example, from an owner who could otherwise have an incentive to deliberately damage or destroy the historic asset in an effort to undermine the protection that listing would otherwise have provided by making its listing pointless.
281.Subsection (4) requires the Welsh Ministers to publish a list of buildings subject to interim protection. At the time of writing these notes, the list appears on the “Statutory listed building consultation notices” page in the “Listed buildings” section of the Cadw website. Buildings under interim protection also appear as a distinct category of assets on Cof Cymru.
282.Interim protection ends when the Welsh Ministers decide whether or not to list a building and serve notice on every owner and occupier and the relevant local authorities under section 77(1) or section 79(5)(b).
283.Schedule 7 provides for the effect of the end of interim protection under section 79(5)(b). It also makes provision about the effect of temporary listing coming to an end without the building being listed under section 85(4).
284.Paragraph 2 of Schedule 7 establishes that, even after the end of interim protection or temporary listing, a person will remain liable to be prosecuted and punished for an offence under the Act committed while the building was protected.
285.On the termination of interim protection or temporary listing, paragraphs 3 to 6 make provision for:
286.However, paragraph 5(3) allows for the continued application of section 132(1) to (6) to permit the recovery of costs reasonably incurred by a planning authority when taking steps specified in an enforcement notice on a building then under interim protection or temporary listing.