2 (1) Due Diligence Flashcards
Two strands of controlled development
- Operational development (building, engineering, mining)
- Material Change of use
Excluded from development:
(1) maintenance / improvement / building words which only affect interior of building or do NOT materially affect external
(2) some changes of use: specifically those WITHIN the same class
Use Classes Order: General Industrial
B2
Use Classes Order: Storage and Distribution
B3
Use Classes Order: residential uses
C (Hotels, dwelling house, houses in multiple occupation)
Use Classes Order: commercial, business and service
Class E
Use Classes Order: local community and learning
Class F
Use Classes Order: F2
local community (including shops selling essential goods in premises not exceeding 280m^2 with no other such facility within 1000m) (F2)
DEF: Sui Generis Uses
Uses which could potentially have adverse effects on their locality including establishments from drinking, entertainment and hot food takeaways
Wales: Use Classes Order: Shops
Class A1
Wales: Use Classes Order: Financial and professional services
Class A2
Wales: Use Classes Order: General industrial, storage and distribution
Class B2 and B8
Do changes to and from a sui generis use require planning permission?
Yes
Implementation dates for planning permission
England: within 3 years
Wales: within 5 years
Completion dates for planning permission
- will not normally impose completion date but if the local planning authority thinks completion will not take place within a reasonable time it may serve a ‘completion notice’
- the permission will cease to have effect if completion has not occurred by expiration period on notice (generally rare)
When is express planning permission not necessary?
Automatic permission by town and country planning (general permitted development) order GDPO
Common categories with permission under GDPO
- developments within the curtilage of a dwelling house and
- minor operations (eg. CCTV cameras, painting exterior)
- certain changes of use between classes
- changes of use from certain sui generis uses
What should you do if unsure about whether a planning permission falls under the GDPO?
- Check if Secretary of state has issued an Article 4 direction (part of local search)
- If there is doubt as to whether change of use comes within GPDO, solicitor can apply for a Certificate of Lawfulness of Proposed Use or Development under s 192 of the TCPO 1990
If the LPA wants to take action against a development, what are their options?
- Enforcement Notice
- Stop Notice
- Breach of Condition Notice
- Injunction
Enforcement Notice: purpose, requirements for serving
- issued where LPA thinks there has been a breach of any type of planning control and it is expedient to issue the notice in light of its planning policies for that area
- must be served on owner, occupier and any other person having an interest in the land (ie. mortgagee) and will become effective 28 days after service
- Must specify alleged breach and steps to be taken or activities which must stop to remedy the breach and a timescale for this - anyone interested in the land can appeal this
- Wales: enforcement warning can be served by LPA if there is a breach of planning control and a reasonable prospect that planning permission would be granted if application was made
- England: From 25 April 2024, LPAs can issue where it appears there has been a breach of planning control
What can someone do if issued an enforcement notice by LPA?
- should apply for planning permission within period specified on notice
- England: retrospective planning permission
When would the LPA issue a stop notice? Requirements for serving?
to bring activities in breach of planning control to and end before an enforcement notice takes effect (28 days after it has been served, with suspended effect if recipient appeals it)
- enforcement notice must be served first
- Can serve ‘temporary’ stop notice, effective for 28 days only to give time for further investigation
When can the LPA file a breach of condition notice? Can the recipient appeal?
can only be served where breach of planning control is a breach of a condition attached to a planning permission
- no right of appeal
When would LPA get an injunction against someone?
- LPA can apply to court for injunction to restrain an actual or apprehended breach of planning control
- LPA must show injunction is necessary and appropriate in circumstances
What is the time limit for enforcement of a breach of planning control
England: LPA must take enforcement action within 10 years of the alleged breach
- for breaches involving operational development (eg building words) or changing use of a building to single dwelling house taking place before 25 April 2024 - time limit is one that applied before this date (which is within 4 years)
Wales: for breaches involving operation development or changing use of building to single dwelling house, limit for enforcement action is within 4 years
- time limit for all other breaches is within 10 years
What happens if the time limit for enforcement lapses?
Generally, no further action can be taken by LPA
- but LPA can apply to magistrates’ court for PEO to enable enforcement action to be taken when statutory time limits have expired and breach of planning control has been concealed
What are consequences for someone who fails to comply with LPA notices? Who is liable?
- Offence punishable with a fine
- Person liable is the current owner of the property, not the person who may have failed to obtain planning permission (buyer’s solicitor should carry out searches to uncover planning history of the property)
What does building regulation control govern? When should building regulation consent be applied for?
Concerned with health and safety regulations of buildings being constructed and control materials and construction methods use
- Normally necessary to apply for building regulations consent for many words carried out to buildings, even if an application for planning permission is not required
Timeline / process for applications to building regulation control
- After application to the building control authority for building regulations consent, work is inspected by building control officer
- May be several inspections
- After final inspection, BCA should issue a certificate of compliance
- Certain self-certification schemes regulated by trades and professions do not require this separate application, but rather the tradesperson can self-certify their work and the regulation authority would send notice to the building control authority
What can be done if there is a breach of building regulation controls?
General Rule: BCAs can prosecute for this
- Wales: must be brought within 2 years of offence
- England: now no time limit (prior to 1 October 2023, used to be within 6 months of breach discovered and 2 years within completion of building)
General Rule: BCA can serve enforcement notice requiring work to be altered or removed
- Wales: within 1 year of works completion
- England: within 10 years of the completion of the work
- (can also take out time unlimited injunctions if work is unsafe)
What should a buyer do to ensure a building complies with Building regulation control?
- enquire into works carried out on property and consents obtained and CON29
- If consent has been granted, buyer can ask seller to obtain regularisation certificate from the BCA which lists work required to bring building up to standard
- or insurance can be obtained (normally only covers cost of compliance with the regulations should the BCA bring proceedings, not personal injury or business interruption caused by defective building)
If a building is ‘listed’, what is included in this listing in addition to the building?
and any object or structure fixed to the building or within the curtilage of the building that forms part of the land and has done so before 1 July 1948
When does ‘listed building consent’ need to be given?
Required to demolish, alter or extend the building (in addition to planning permission)
- may also be required for internal alterations (even without planning permission
Does the GDPO apply to listed buildings?
- Certain classes will not
Conservation areas: when will consent be needed from the LPA?
- Changes to external appearance of building in CA may require planning permission from LPA not required elsewhere
- Demolition or substantial demolition of a building within CA will require PP from the LPA
- Any tree work planned in CA must have notified LPA 6 weeks in advance (they were determine whether or how the work should take place)
Which searches and enquiries are relevant to every property?
- Survey and personal inspection
- local search
- water and drainage search
- pre-contract enquiries of the seller
- environmental searches
- flood search
DEF: Structural Survey
detailed commentary on the structure
Homebuyers’ valuation survey
less detailed than structural survey but less expensive and will contain advice on maintenance requirements
Personal inspection of property
Done by buyers’ solicitor to ascertain accuracy of the plan
What forms are used to complete the local search?
LLC1
CON29
What does LLC1 uncover?
details of any financial charges or restrictions on land that have been imposed by public authorities under statute (eg. planning consents, tree preservation orders etc.)
What does CON29 reveal?
Standard enquiries in CON29 reveal information such as planning permissions, restrictions on development (ie. Article 4 direction), whether land is contaminated etc. Also raise questions of liability for road repair
What optional additional searches can be done on form CON29O
- pollution notices
- rights over common land
Purpose of water and drainage search
- Want to ascertain whether drains and sewers serving property are responsibility of statutory undertaker (’adopted’) as opposed to the owner (ie. if they are connected to a public water supply)
- If property does not drain into public sewer, buyer will have to pay to maintain drains and sewers and bringing them up to adoption standard if water company chooses to adopt them
Forms for water and drainage search?
Forms used generally CON29DW (residential properties) and CommercialDW (commercial properties)
Important pre-contract enquiries of the seller:
- whether seller has had disputes about property
- Any third parties occupying party
- compliance with any covenants contained within the title
- planning permissions
- issues about boundary maintenance
- for commercial properties: VAT status of transaction
Why is an environmental search necessary?
High likelihood solicitor will be found negligent if they do not advise on risk and liability where property is contaminated for the purposes of the Environmental Protection Act 1990
Most common environmental search
Most common search is ‘desktop search’ carried out by specialist environmental search company by looking at plans of the area, info published by local authorities and EA
What should the buyer do if an environmental search shows contamination?
buyer may want a physical survey of land to be carried out by specialist (take soil samples etc.)
Why are flood searches necessary?
- property may be at risk for flooding
- insurance may be expensive
- limited information available on land registry website
- seller may decline to reply to enquiries about flooding affecting the property (caveat emptor principle)
What should the buyer do if a flood risk is identified for their property?
insurance available for most residential properties from scheme ‘Flood Re’ but commercial properties not covered
- Commercial property flooding insurance very expensive or unavailable
When should a chancel repairs search be done?
- if property is in church of england parish (pre reformation, pre 1500)
- if previous transfer for value occurred before 13 october 2013
When would a chancel repair requirement bind a buyer of unregistered land
- if referred to in title deeds
- if protected by a caution against first registration (could be lodged after completion but prior to registration)
What should a buyer do if they suspect they are liable to repair a chancel / are unsure
- obtain insurance
How is a mining search done
- Coal mining areas seen in Coal Authority’s map or by search of Coal Authority on CON29M form to confirm if property is in area where mining has taken place in the past or is likely to take place in the future, whether there are shafts, existence of underground workings etc. (or any claim for subsidence damage)
- index map search to see if title to mines and minerals is registered
When is a canal & river trust search necessary?
If property near river or canal, the buyer needs to be made aware of any
liability for repairs to the maintenance of the waterways, banks and tow paths, and whether property has been affected by flooding
- info from canal & river trust
When should commons searches be done?
If the property is on a greenfield site or adjoining a green space (eg. village green) it may be affected by common rights such as right to pasture
- buyer’s solicitor should raise optional enquiry 22 in CON29O form in local search
Purpose of railway search
to determine whether there are any obligations to repair boundary features separating property from railway line and whether there are restrictions on carrying out building work next to the line
Method of railway search?
- raising pre-contract enquiries with seller
- searches on specific existing and proposed railway
undertakings, such as Crossrail, HS2 and the Newcastle Metro. Also, the reply to enquiry
22 in the CON29 form in the local search will reveal if the property might be affected by a proposed rail scheme.
Purpose of a Highway Search
- if property is going to be redeveloped and there is a grass verge in third party private ownership between the road and the title boundary of the property forming a possible ‘ransom strip’.
- buyer’s solicitor should send plan to highways authority asking for boundaries of publically maintainable highways (including verges) to be marked on it
- see if highway authority is planning to adopt a privately owned highway
Necessary search when land is unregistered:
An Index Map Search (‘SIM’) and a Land Charges Department search against the seller and previous estate owners will be necessary in any purchase of unregistered land
Necessary search when seller is a company
- Buyer’s solicitor should carry out company search at company’s house to confirm whether seller has capacity to enter into the contract (by confirming identities of current officers of the company)
Bankruptcy Search
- for solicitors acting for lenders (to ensure borrower is not bankrupt), search should be made prior to exchange of contracts
- form K16 for individuals to land charges dept.
- if buying from surviving joint tenancy, bankruptcy search against dead tenant (joint tenancy can be severed on bankruptcy)
A developer in Wales wants to acquire a shop (Class A1) and turn it into a restaurant (Class A3) - will planning permission be required?
Yes - as this is a change between classes amounting to development
When is express planning permission NOT required for development?
If the planning permission is granted automatically under the GPDO
If building work / change of use which requires planning permission has been deliberately hidden from the local authority such that the limitation period for bringing enforcement action has expired - are there are avenues for legal recourse?
Yes, the LA can apply to the court to take action outside of limitation period
