Chapter 6: Town and Country Planning (Stage 2)

Question 1

What does planning do?

Answer 1

Planning restricts development of land to ensure that uncontrolled building doesn’t take place

Question 2

Who is planning law imposed by?

Answer 2

Local authorities

Question 3

How does planning affect conveyancing?

Answer 3

Because it imposes requirements on building on, and alteration of, property.

A seller, for example, must declare to the buyer any alterations that they have made to the property and produce the required permission documents.

The buyer’s solicitor will want to make sure all alterations were made with the proper permissions.

Question 4

How may restrictions on use apply outside of the statutory controls over development of land?

Answer 4

Buyer needs to be aware that land may be subject to private planning restrictions.

These may take the form of restrictive covenants which might prohibit or limit development.

The buyer’s solicitor should carefully investigate title to establish the existence of any such covenants.

Question 5

How is planning separate from title?

Answer 5

The appropriate planning permission may be obtained for building work to a property, but if there is a covenant on the title restricting such work, the title is still an issue that will need to be addressed.

Planning doesn’t in any way take precedence over matters of title.

Question 6

What governs the development of land in England and Wales?

Answer 6

The Town and Country Planning Act 1990

Question 7

When is planning required under the T&CPA 1990?

Answer 7

Planning permission is required for the carrying out of any development of land.

Question 8

How is development defined in T&CPA 1990?

Answer 8

1. Carrying out building, engineering, mining. or other operations in, over, or under land, or
2. Making any material change of use of any buildings or other land.

Question 9

How is material change of use interpreted?

Answer 9

Interpreted broadly + covers the conversion of 1 house to 2 flats or a house to a shop and a flat.

Question 10

What must be done if a property owner wants to carry out ‘development’?

Answer 10

They must obtain planning permission either by deemed permission or by express permission as the result of a formal application to the local authority

Question 11

What works are not considered ‘development’?

Answer 11

Minor internal works.

Question 12

What is permitted development?

Answer 12

The Town & Country Planning (General Permitted Development) Order 1995 allows certain types of development (permitted development) without the need for express consent because permission is deemed to be granted for the specified works.

Question 13

What are examples of development covered by permitted development?

Answer 13

i. small home extensions within certain size limits,

ii. porches,

iii. fences, or

iv. conservatories

Question 14

What is an Article 4 Direction?

Answer 14

Permitted development rights don’t have to be adopted by a local authority.

The local authority can exclude locations, such as a conservation area, from the permitted development rights by passing an Article 4 Direction.

• This enables the local authority to maintain stricter control over development in its areas.

Means that if a property owner wants to make even minor changes to the property, they will need to make an application for express planning permission

Question 15

When is express planning permission needed?

Answer 15

If a property owner doesn’t have deemed permission for their proposed development, they must make an application to the local authority for express planning permission.

Question 16

What are the 2 types of express planning permission?

Answer 16

1. Outline permission
2. Detailed permission

Question 17

What is outline permission?

Answer 17

Gives broad permission as to the principle of development on the land in question subject to ‘reserved matters’.

Question 18

What happens if there are reserved matters when outline permission is given?

Answer 18

If there are reserved matters, there will have to be a full application within 3 years of the outline permission to obtain approval on those matters.

Work must start within 2 years from approval of the reserved matters.

Question 19

What are ‘reserved matters’ in outline permission?

Answer 19

These are issues such as the detail of the materials to be used, which must be approved by the local authority.

Question 20

What is detailed permission?

Answer 20

More complex + costly application, involving the submission of full plans to the local authority.

If approved, detailed permission will allow the development to commence.

Highly likely that full permission will be subject to a no. of planning conditions that will have to be met either before development starts or during the build process.

Some conditions will continue to bind even after building is completed.

Question 21

When must development begin if detailed permission is given?

Answer 21

After detailed permission is issued, the development must commence within 3 years of the date of the permission.

Otherwise, the permission lapses.

Question 22

When will planning permission be a relevant consideration in the exam?

Answer 22

1. A buyer is buying land to develop/build on,
2. A seller has made changes to the property
3. A buyer intends to alter/extend/change current use of the property, or
4. A buyer is buying a newly built property.

Question 23

What enforcement action can be taken if any development lacks planning permission or fails to comply with a planning condition?

Answer 23

The local authority can take enforcement action against the owner or occupier of the property/affected land, or against any other interested party.

Question 24

What could enforcement action by the local authority involve?

Answer 24

Could include requiring full compliance with planning laws + may involve significant expense if the development works must be pulled down or rebuilt according to planning conditions.

Question 25

Why are breaches of planning issues a concern for a potential buyer of a property?

Answer 25

Planning problems run with the property, so it is no defence if a buyer buys a property on which planning controls have been breached.

The new buyer cannot rely on the fact that it was a previous owner who carried out the work without the required permission.

Therefore, the buyer’s solicitor must find out before exchange of contracts whether all relevant planning requirements have been complied with, otherwise their buyer client could be liable for any planning problems if the local authority decides to take enforcement action.

Question 26

What must be done if the local authority decides to take enforcement action for a planning breach?

Answer 26

It must serve an enforcement notice.

Question 27

What is required of an enforcement notice?

Answer 27

The enforcement notice must state:
1. the nature of breach,

2. the steps required to remedy the breach,
3. the time limit to complete the required work.

Question 28

What remedies does a local authority have other than issues an enforcement notice?

Answer 28

1. Apply for an injunction to prevent work from taking place, or
2. Issue a ‘stop notice.’

This requires the parties carrying out the work to cease the work immediately.

These remedies are fairly rare.

Question 29

What are enforcement time limits for unauthorised building works?

Answer 29

Enforcement notice regarding unauthorised building works must be served within 4 years of the breach.

Question 30

What are the enforcement time limits for breaches other than unauthorised building works (e.g., material change of use)?

Answer 30

Enforcement notice must be served within 10 years of the breach.

E.g., if there is a breach of conditions attached to a planning permission, the enforcement must be served within 10 years of the date of the first breach.

Question 31

What is a listed building?

Answer 31

A building which has been placed on a statutory list + is likely to be an old building of special architectural interest.

Question 32

How would you find out if a property is listed?

Answer 32

The local search (and PIF) may reveal that the property is a listed building

Question 33

What restrictions surround a listed building?

Answer 33

A listed building cannot be demolished, extended, or altered without a listed building consent form from the local authority.

This consent is required in addition to planning permission and changes to the property are much more restricted.

Question 34

What should the seller do if the building is listed?

Answer 34

The seller should supply a copy of the notice of listing with the contract package.

Question 35

What will be advised if a building is listed?

Answer 35

The buyer’s solicitor will advise their client to have a full structural survey of the property carried out.

Question 36

What time limits apply to enforcement action against breaches re listed building status

Answer 36

There is no time limit for enforcement action by a local authority regarding breaches of listed building status.

Question 37

What is the effect of failing to comply with an enforcement notice?

Answer 37

Failure to comply with an enforcement notice is a criminal offence.

Question 38

What are building regulations governed by ?

Answer 38

Building Control - a department within the local authority that is concerned with ensuring health and safety standards are met when construction takes place.

Question 38

What are buildings regulations?

Answer 38

Series of statutory standards in place to ensure that new buildings + constructions are built according to certain standards.

Question 39

What will be done re any works that take place for them to comply with building regulations?

Answer 39

A building control officer will inspect the work being carried out at various stages and, once satisfied with the completed work, will issue a buildings regulations completion certificate (sometimes known as a ‘final certificate’).

Question 40

How will the buyer find out whether any building work has been done that may not have required planning permission?

Answer 40

Buyer will find out if work has been done by:
i. Checking the PIF,
ii. the pre-contract enquiries of the seller, and/or
iii. asking their surveyor to inspect the property.

Question 41

What work requires compliance with building regulations?

Answer 41

List of works covered by buildings regulations is much longer than works that require planning permission.

Building regulations cover things such as:
i. installation of windows,

ii. electrical works, or

iii. installation of a boiler

Question 42

When can the local authority take enforcement action against a person who doesn’t comply with building regulations?

Answer 42

Within 12 months from the date of the breach

Question 43

What may the local authority do if the 12-month limit for enforcement of building regulations has passed?

Answer 43

Even after the 12-month limit for enforcement has passed, the local authority may still be able to obtain an injunction to force the owner to bring the property up to standard

Question 44

What can happen if the buyer’s solicitor doesn’t obtain copies of building regulation approvals and advise the buyer of the consequences?

Answer 44

The solicitor may be sued by their client for negligence.

Question 45

What might the buyer do if there has been a breach of planning laws or building regulations + the relevant enforcement period has passed?

Answer 45

A buyer might ask the seller to provide indemnity insurance at their own cost to deal with the possibility of enforcement.

Question 46

What must not be done in the case of breach of planning laws or building regulations?

Answer 46

Important that no one should contact any department in the local authority to discuss a lack of documentation, as this could result in indemnity insurance not being available .

Question 47

How can you find out about planning, listing, and building regulations?

Answer 47

The local search will indicate whether the property is listed + note any planning permissions or building regulation completion certificates that relate to the property in question.

It will also give details of any enforcement action that has been or is being taken by the local authority in relation to the property.

Question 48

How will the use of a flat often be restricted in residential contexts?

Answer 48

Use of a flat will often be restricted to use as a dwelling only and business use will not be permitted

Question 49

What is use of a commercial building governed by?

Answer 49

Planning laws.

The Town & Country Planning (Use Classes) Order (amended in 2020) puts uses of land and buildings into various categories known as ‘Use Classes’.

Question 50

What is the effect of ‘Use Classes’?

Answer 50

As part of the planning process, a use class is assigned to a property.

Therefore, a landlord cannot allow a tenant to use the premises for whatever activity they desire.

Question 51

How are the Use Classes divided?

Answer 51

Divided into several categories of use, including:

1. commercial, business, and service (Class E)
2. Learning and non-residential institutions (Class F.1),
3. Local and community (Class F.2).

Question 52

What is typically in class E (commercial, business, and service)?

Answer 52

1. Shops
2. Financial and professional services such as banks and building societies,
3. Food and drink (mainly on premises),
4. Business (office, research and development, and light industrial processes),
5. Non-residential institutions (medical or health services, creches, and day nurseries).

Question 53

What is typically included in Class F.1?

Answer 53

Non-residential institutions.

i. Education
ii. Art gallery,
iii. Museum,
iv. Public library,
v. Public exhibition hall,
vi. Places of worship,
vii. Law courts

Question 54

What typically is included in Class F.2?

Answer 54

Shops no larger than 280 square meters (selling mostly essential goods and at least 1km from:
- Another similar shop,
- Community halls,
- Outdoor sport/recreation areas,
- Indoor or outdoor swimming pools,
- Skating rinks) .

Question 55

When is planning permission not needed when changing use of property?

Answer 55

Generally, planning permission is not needed when the existing and the proposed uses fall within the same Use Class.

Question 56

When is planning permission needed when changing use of property?

Answer 56

Generally, if it is proposed to change from one Use Class to another, planning permission is needed.

Most external building work associated with a change of use is also likely to require planning permission.

Changes to and from uses such as:
- drinking establishments,
- hot food takeaways, and
- cinemas, concert, dance, and bingo halls also require planning permission.

Question 57

How does changing between Use Classes benefit from Permitted Development?

Answer 57

Some changes from one Use Class to another are covered by ‘permitted development’ rights, such as a change in Use Class from a restaurant to a shop.

Question 58

When does permitted development not applying to change of use?

Answer 58

If a property is within a conservation area or the property in question is a listed building, any permitted development rights will be removed, and a planning application will be required.

Remember also that the local authority can remove permitted development rights by passing an Article 4 Direction.