3. Pre contract searches & Enquiries Flashcards
What is the purpose of a planning system
Aims to develop land in a planned & appropriate fashion
Why is planning relevant to the transaction?
affects whether a building can be: built, altered, extended, and whether it is fit for a particular use (has it been authorised)
Do planning matters run with land?
Yes- breaches from seller pass to buyer
Why should solicitor enquire about planning permissions
Buyer may wish to carry out works or change the use of the property after purchase which requires planning permission.
When is planning permission needed
For any activity constituting development
How is development defined in s55 TCPA 1990
- as the carrying out of either the following:
- The carrying out of building, engineering, mining, or other operations in, on, over, or under land. This can include the erection of new buildings and alteration to existing buildings; and/or
- The making of any material change in the use of any buildings or other land
When is a planning permission not required?
- Works for maintenance, improvement or other alteration of a building which affect only the interior or do not materially affect the external appearance of a building
- The use of buildings or land within the curtilage of a dwelling house for any purpose incidental to the use of the dwelling house (e.g using existing garage as playroom)
- Change of use within the same use class specified by the Town and Country Planning Use Classes Order 1987
- Contains list of uses grouped
What is a sui generes category?
Uses that are expressly excluded, as they have adverse effects on their locality
When is an express planning permission required in relation to demolition?
- That likely to have an effect on the environment
- Listed buildings need a listed building consent
- Partial demolition = building operation and needs permission
Procedure for obtaining a planning permission
- outline planning permission
- application for full planning permission with all aspects
- application for permission in principle
- LPAs decision
- ## development starts within a time limit
What if developments have not been completed within the 3 year time limit
LPA can issue a completion notice stating a date at which works must be completed
Time limit for changed use class/operational development breaches
Within 4 years of the alleged breach
LPA enforcement power in relation to breaches
- Enforcement notice stating matters alleged to constitute the breach, steps to remedy and time within which these must be taken (removal of building, cessation of activity)
- Stop notice
- Temporary stop notice to prevent activity for 56 days whilst considering whether further action is to be taken
- Breach of condition notice
- Injunction
What is required to demolish a listed building?
Listed building consent is required for total demolition of a listed building, alterations or extensions affecting the building’s character
What must be obtained prior to any building works
Building regulation consent
Why must building reg consent be obtained prior to works
Concerned with health & safety, reviews the material and construction methods used to carry out the work (installing CHS, electrical works, replacement window installation)
Building reg consent process
- Full plans application (detailed plans and full application)
- Building notice (simple form of proposed works)
Buildings control inspector will inspect the works and issue a certificate of compliance (which is to be retained)
Who is qualified to conduct a building regulation control
- Competent contractors are able to self-certify (FENSA scheme)
- Self-issued certificate is issued by the contractor upon work completion after which the LA is notified of
Prosecution for breach of BRC
no time limit
What should a solicitor be made aware of
Planning permissions may be granted for a given proposal (or may not constitute development) but contravene a valid restrictive covenant over the land
What happens where land is contaminated
- Liability for contaminated land dictated by EPA 90
- Each local authority has a duty to inspect its area for contaminated sites
- They can then serve a remediation notice specifying steps necessary to clean up the site so it is suitable for its intended use - served on person who caused/knowingly permitted all or some of the contaminating materials to be present in on or under land
- If someone cannot be identified, liability falls on the current owner/occupier.
What is the caveat emptor principle?
- Buyer’s solicitor must ensure property is suit for purpose
- Failure may give rise to negligence liability
When should searches be conducted?
No more than 6 months by completion date
Which searches should be made?
- Local land charges register search
- Enquiries of local authority
- Pre-contract enquiries
- Water and drainage enquiries
- Environmental search
- Personal inspection
Additional searches
- Chancel repair
- Index map search
- Land charges department search against sellers name (For insolvency)
- Company search
- Flood Search
- Location-specific searches
- Survey reports
What may errors from searches lead to?
compensation (s10 LLCA 1975)
What is a CON29 search?
- Relevant to every transaction & covered by authorities quoted fee
- Specialised in nature
- Must be considered whether every question is relevant to the transaction
- Enquiries raised should be indicated- separate fee for each enquiry raised
Enquiry 1
- Whether planning consents/building regs have been granted, pending or refused
- Produce copies or purchase them so buyer’s solicitor can check that cl’s proposed use is the authorised use for planning purpose and check there are no conditions interfering with that use
Enquiry 2.1
Are roads serving property maintained at public expense (if not, buyer is liable for maintenance)
Enquiry 2.2
Can property be crossed by a public path or bridleway (access cannot be denied & they cannot build over the path unless they can have it diverted using statute)
Enquiry 3.4 and 3.5
- Whether there are any new roads or proposed railways within 200 metres of the property
- Any proposals for a railway, tramway, light railway, or monorail within LA boundary (may cause disturbance to buyer’s use and enjoyment of property)
- Any proposed schemes such as High Speed Rail & whether additional enquiries ought to be made
Enquiry 3.6
Any proposals for permanently stopping up roads/footpaths, or putting any other traffic schemes into operation (one way parking, parking restrictions)
Enquiries 4.8, 3.9
- Any proceedings for breach of building regs have been authorised, whether planning enforcement and stop notices have been served in respect of a breach of planning control
- Whether they have been complied with
- Whether property is affect by any article 4 direction restricting permitted develop/TPO (tree preservation order)
Enquiry 3.12
Whether there are any proposed compulsory purchase orders
Enquiry 3.13
Whether any notices have been served in relation to remediation of contaminated land (buyer may incur liability for clean up if they proceed with the purchase)
Enquiry 3.14
Whether property is in an area affected by radon gas
Enquiry 3.15
Is the property an asset of community value? (pub/village shop) - if sold, community groups to be given a fair chance to prepare a bid
Enquiries 11-14
Is the property within an area afforded special designation (enterprise zone) benefiting from government policies (e.g. tax break) to stimulate economic growth
Enquiry 18
Any environmental and pollution notices?
Enquiry 22
Whether the property/land abutting it, is registered as common land or village green under Commons Registration Act 1965
Issue with LLC1/CON29 searches
reveal matters DIRECTLY affecting land, not adjoining that that may indirectly affect the property
What is an alternative option where cl wants to expedite process
Personal search using an agent to search LA offices
Own database of info that would be revealed by a local search for a set fee
When do water and drainage searches need to be made
Enquiries ought to be made at every transaction
Enquiries to be made for water and drainage search
- Whether property has foul water drainage to public sewer
- Whether property has surface water drainage to public sewer
- Whether there is a water main, public sewer, disposal main or lateral drain within the boundaries of the property
- Whether property is connected to public water supply
Why are environmental searches required
- Possibility of land being contaminated
- Environmental report in all property transactions = best practice
- Environmental issues
Is property near a landfill site
IS property near a factory discharging hazardous substances
What happens if environmental issues present
- Assess risk via environmental report
- Risk assessment → instruct environmental consultants to survey the land
- Samples of soil taken to assess contamination posed & extent
What is a chancel repair search
Properties in certain parishes may be obliged to pay repair costs to parish church
Registered land chancel repair search
- Can be protected by notice until transfer for value occurs on/after 13 Oct 2013
- Post Oct 2013, liability does not bind subsequent buyer unless protected by notice
- No transfer → screening search to ascertain whether the property is a liable parish (notice may be entered after title investigation but prior to transfer registration)
- If screening shows liable parish, insurance against the potential liability
Unregistered land chancel repair search
- Buyer is only bound if chancel repair liability is referred to in the title deeds/protected by caution against first reg lodged prior to first reg
- If caution is lodged & liability proved → notice of liability on register
- Index map search prior to completion checks for cautions against this
What search must be made in every case dealing with unregistered land
Central land charges department search on Form k15
What happens if a bankruptcy search reveals an entry?
Lender will not advance the money
K15
Full search for unregistered land
K16
Bankruptcy only for registered land
What ought to be searched when dealing with companies in conveyancing
Co searches should be carried out against any co’s revealed as estate owners within the epitome
Whether co is solvent (Solvency (not in administration, receivership, liquidation, that it has not been wound up)
When is a flood search necessary?
- Occurs where property is:
- Near river/coast
- Rainfall overwhelms drainage capacity
- Sewers become blocked (sewer flooding)
- Underwater levels rise above surface level (groundwater flooding)
What should a solicitor mention where flood search is necessary?
- Establish if insurance for flood risk is available, on what terms and at which cost
- Flood re- flood cover for most residential properties
- Discuss level of flood risk with building surveyor/flood risk consultant
What else can be considered regarding a flood search?
Free screening search for river, coastal, surface water & reservoir flooding can be made using property postcode on flood maps to access risk to reg title
What is an index map search?
Computerised map on Ordnance Survey providing index of land in every registered title and pending applications for first registration
Location specific searches
Mining (if located in coal mining claim area- law society coal mining directory indicates this)
-Application on form CON29M + large scale plan
Common land- town and village greens
- TVG register
- Box Enquiry 22 CON29O
- Where property abuts village green/common land or where verge strip separates property from public highway
What does CON29M search show
- Shows where property is in an area where mining has taken place in the past/likely to happen in future
- Evidence of underground workings
- Subsisdence
- Compensation for subsisdence damage
Rivers, streams, canals search
Canal and river trust:
- Responsibility for maintenance of waterway
- Banks
- Associated towpath
- Contribution to defence structure required?
- Relevant proposals benefiting water way
Railways search
Seller enquiries as to whether property would be affected by a rail scheme
Highways search
- Specific enquiries of relevant highway authority
- Each boundaries of publicly maintained highways abutting property
Searches to be made in relation to occupiers
- Pre-contract enquiry
- Equitable interest/tenancy?
- Ensure agreement has been signed to surrender
- Non owning spouse
- Rights of occupation registered?
- Agree to leave and remove any registration
Surveys as to building works
- Guarantees?
- Planning permissions obtained
- Copies of relevant planning permissions
- Conditions complied with
- Have covenants been complied with
- If consent required, but not obtained can insurance cover be obtained
- BRC obtained
- Survey as to whether they are being carried out to a high standard
Why is planning relevant to the transaction
Planning affects whether a building can be: built, altered, extended, and whether it is fit for a particular use (has it been authorised)
Planning matters run with the land → action for breaches from the seller pass to buyer
Buyer may wish to carry out works or change the use of the property after purchase which requires planning permission. Buyers solicitor must advise their cl before contract exchange
When is planning permission needed?
For any activity constituting development
s55 TCPA 1990 definition of development
- as the carrying out of either the following:
- The carrying out of building, engineering, mining, or other operations in, on, over, or under land. This can include the erection of new buildings and alteration to existing buildings; and/or
- The making of any material change in the use of any buildings or other land
Matters which do not constitute development
Works for maintenance, improvement or other alteration of a building which affect only the interior or do not materially affect the external appearance of a building
The use of buildings or land within the curtilage of a dwelling house for any purpose incidental to the use of the dwelling house (e.g using existing garage as playroom)
Change of use within the same use class specified by the Town and Country Planning Use Classes Order 1987
What if there is a change in use class?
requires planning permission as it is a material change of use
