2. Due dilligence Flashcards
What does not require planning permission?
- Maintenance of interior
- Some material changes, e.g. extensions under a certain size
- Change of use within the same class
What is the statutory definition of development? S 55 TCPA 1990
The carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land
What are the main planning use classes?
B2 - general industrial
B3 - storage and distribution
C - residential uses
E - commercial, business and service
F - local community and learning
What are the most common use classes within Class E?
E(a) – retail sale of goods, other than hot food
E(b) – sale of food and drink for consumption on the premises
E(c) – financial and professional services
E(g) – uses which can be carried out in a residential area without detriment to its amenity, including offices to carry out any operational or administrative functions and research and development
What are the planning classes in Wales?
A1 - shops
A2 - financial and professional services
A3 - food and drink
B1 - business
B2 - general industrial
B8 - storage and distribution
C - residential uses: hotels (C1), residential institutions (C2), dwelling houses sole or main
residence (C3), homes in multiple occupation (C4), dwelling houses not sole or main
residence (C5), short term lets (C6)
D - non-residential institutions (D1), assembly and leisure (D2)
What is “sui generis”?
Latin for class of its own = uses which could potentially have adverse effects on locality, includes places like cinemas, bingo halls, pubs, hot food takeaways
What are identified in the Town and Country Planning (General Permitted Development) Order 2015?
Developments granted automatic planning permission
What certificate is applied for to confirm whether something is a permitted development?
Certificate of Lawfulness of Proposed Use or Development (s 192 TCPO 1990)
What are permitted developments?
- Extensions below a certain size
- Minor operations such as painting exterior
How can a GPDO permitted development be excluded?
By the issuing of an Article 4 Direction
What actions are available if someone develops a property in contravention of planning?
Enforcement notice
Stop notice
Breach of condition notice
Injunction
When does an enforcement notice take effect?
28 days after service
What is contained in an enforcement notice?
The alleged breach and steps to be taken / activities to be discontinued
Timescales
What happens if someone appeals an enforcement notice?
The effect is suspended
When can a stop notice be served?
Following the service of an enforcement notice
How long is a temporary stop notice effective for?
28 days (straight from service)
Purpose is to cover the period from application of enforcement notice until the enforcement notice takes effect
What is a breach of condition notice?
Similar to an enforcement notice however cannot be appealed
What is the time frame in which the LPA must apply for an injunction?
4 years - operational development carried out without planning permission
4 years - change of use to single dwelling house
10 years - all other breaches, e.g. any other material change of use or breach of planning condition
What will the LA do if a building regulation certificate has not been obtained?
Apply for an injunction
What are building regulation controls concerned with?
Health and safety aspects of building being constructed or altered
Control of the materials and construction methods used
How long does the LA have to serve an enforcement notice if building work has taken place without building regulation controls in place?
12 months
What are conservation areas?
Areas which have increased restrictions on changes to the property
What are some common restrictions in conservation areas?
- Planning permission required for changes to external appearance
- Planning permission requires for demolition
- Works planned to a tree must be notified to the LPA 6 weeks in advance
In the deduction of title in the sale of unregistered land, what 4 things are required for a document to constitute “good root of title”?
- Shows that the entire legal and equitable interest is owned by seller - seller is “seised of the property … for an estate in fee simple and is selling the same to the Purchaser” and seller is conveying the land as “beneficial owner … unto the Purchaser”
- Contains recognisable description of the relevant land
- Does not cast doubt on seller’s title, e.g. stamping defect
- Is at least 15 years old
What documents are generally the best root of title?
A conveyance or mortgage
What are the key matters which need to be considered when checking each title deed listed in the epitome of title for unregistered land?
Chain of ownership - should be unbroken
Description of the land
Stamp duties
Incumbrances
Execution - as a deed
Land charges searches
If the seller’s solicitor has any doubt about any incumbrances on unregistered land, when should they search back to on the land charges system?
1926
How does a seller’s solicitor conduct a land charges search for unregistered land at the Land Registry?
Using Form K15
In unregistered land, in what 3 circumstances does a buyer have a right to assume that a joint tenancy was not severed (and therefore overreaching isn’t required in the sale)?
- No written record of the severance
- No bankruptcy proceedings against either of the joint tenants
- The transfer by the surviving joint owner to the buyer contains a statement that the survivor is solely and beneficially entitled to the land
Does the seller have a duty to disclose everything in pre-contract searches and enquiries?
They cannot mislead but do not have duty to disclose certain matters
Who makes pre-contract searches and raises the enquiries?
Buyer’s solicitor
What types of searches 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
Why is a survey and personal inspection recommended for every property?
- If using mortgage, required by lender
- Identify any issues with the property not apparent from the plans such as drain, pathway or occupier (i.e. see if there’s a lease)
- Residential - usually do just survey only
- Commercial - usually personal and survey
What three forms make up the Local Search?
LLC1
CON29
CON29O - optional additions
What information is obtained from an LLC1 search?
A local land charges search for financial charges or restrictions
Identifies:
The planning history (including any current planning permission)
TPOs
Conservation area designation orders
What standard information would be revealed in a CON29 form?
- Planning permissions / enforcement or stop notices
- Restrictions on permitted development (e.g. Article 4 Direction)
- Whether land designated as contaminated
Liability for road repair - whether roads are adopted highways maintainable at public expense / LA plans for highways
What is a CON29O form?
Used to raise optional enquiries:
8 - location of pipelines on the Property
18 - environmental and pollution notices
22 - rights over common land and town and village greens
What form is used for the water and drainage search?
CON29DW (residential)
Commercial DW (commercial)
Shows whether property is connected to mains water, and foul and surface water drainage
What is the most common type of environmental search which is conducted?
Desktop search - shows whether there is a risk that contaminative uses have taken place on the property or in the surrounding area
If high risk following desktop, then a full environmental survey should be carried out
If land contaminated and original polluter cannot be found, current owner will pay for cost of remediation
What are additional searches which could be conducted?
Chancel repairs search
Mining searches
Canal & River Trust search
Commons search
Railways
Highways
Unregistered land searches
Company search
Bankruptcy / insolvency search
What would a chancel repairs search identify?
Owners of certain properties in a Church of England parish where there has been a medieval church with a vicar could be liable to pay the cost of repairing the chancel of the parish church
Necessary if a property has not been sold since 13 October 2013
What may a mining search identify using CON29M?
Whether a claim for subsidence has already been paid, as this may prevent a future claim being made
What would a commons search identify?
Whether a property on a green-field site or adjoining an open space such as a village green is affected by common rights, such as the right to pasture
What is “adoption” by Local Authority?
The LA conduct a compulsory purchase over a road, which needs to be up to LA standards therefore the properties fronting onto it will have to pay required maintenance to bring it to this standard
How is a Highways search undertaken?
By a letter to the Highways Authority
Ask for confirmation that public roads directly access the property - will have to obtain easement if not
In unregistered land, who does Index Map Search and Land Charges Department searches need to be carried out against?
Seller
Previous estate owners
When should a company search be conducted?
- Where the seller is a company, buyer’s solicitor should carry out a search
- Where the property is unregistered, company searches should be carried out against any corporate estate owners
When should a bankruptcy/ insolvency search be carried out?
Solicitor acting for a lender should make a search against the borrower to ensure there are no bankruptcy or insolvency proceedings affecting them
What matters are commonly revealed in searches?
Planning permission
Road adoption
Tree preservation orders
Smoke control orders
Conservation areas
Occupiers (e.g. non-owning spouse with home rights)
