Due Dilligence 2

Question 1

Definition of ‘Development’ in planning law

Answer 1

‘Development’ is defined by
s 55* of the TCPA 1990 as 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.

Question 2

Two strands of controlled development

Answer 2

firstly operational
development (building, engineering, mining or other operations) sometimes referred to as
‘BEMO’ and material change of use.

Question 3

s 57 (1) of the Town and Country Planning Act 1990 (TCPA 1990)

Answer 3

planning
permission is required for carrying out any development of land.

Question 4

What is excluded from the definition of development

Answer 4

maintenance, improvement or other alteration of any building or works which affect
only the interior of a building, or do not materially affect the external appearance of a building

Question 5

section 55(2) TCPA 1990 excluding change of use.

Answer 5

B2 – general industrial

B3 – storage and distribution

C – residential uses: hotels (C1), dwelling houses (C3), houses in multiple occupation (C4)

E – commercial, business and service

F – local community and learning: learning and non-residential institutions (F1) and local
community (including shops selling essential goods in premises not exceeding 280m2 with
no other such facility within 1,000m) (F2).

Question 6

Class E (introduced 1 September 2020)

Answer 6

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.

Question 7

Examples of ‘sui generis’ (‘class of its own’)

Answer 7

These are uses which could potentially
have adverse effects on their locality and include entertainment establishments (such as
cinemas and bingo halls), drinking establishments (such as pubs and wine bars) and hot food
takeaways (for the sale of hot food for consumption off the premises).

Question 8

Is planning permission required for change of use in the same class?

Answer 8

No. Changes of use to another use, or mix of uses, within the same use class will not require planning
permission. For example, in England, a change of use from a clothes shop to a restaurant will not
require planning permission as both are within class E.

Question 8

Is planning permission required for change of use in another class?

Answer 8

Yes. A change of use from one class to another will require planning permission

Question 9

The amount of time that is usually expected for the implementation of planning permission.

Answer 9

England 3 years.
Wales 5 years.

Question 9

Is planning permission required to or form suis generis?

Answer 9

Yes. Changes to and from a sui generis use will always require planning permission

Question 10

Completion notice

Answer 10

However if Local Planning Authority (‘LPA’) decides
that completion will not take place within a reasonable time, it can serve a completion notice
stating that the permission will cease to have effect if completion has not taken place by the
expiration period stated in the notice.

Question 11

What statute is used to show that planning permission can be granted automatically?

Answer 11

Town and Country Planning (General
Permitted Development) Order 2015 (‘GDPO 2015’). In Wales, permitted development rights
are set out in the Town and Country Planning (General Permitted Development) Order 1995
(‘GPDO 1995’).

Question 12

Can the GDPO be negated.

Answer 12

Yes it can. It is possible for the Secretary of State in charge of Town and Country Planning, or the LPA, to
exclude the effect of the relevant GPDO by issuing an Article 4 Direction*

Question 13

Can Applications be made to LPA

Answer 13

The LPA must issue a certificate if they are satisfied the proposals would not constitute
development, or would be granted permission as permitted development under the GPDO,

Question 14

What can one do if there is doubt on whether change of use amounts to development or come within GPDO.

Answer 14

It is possible to apply for a Certificate
of Lawfulness of Proposed Use or Development under s 192 of the TCPO 1990.

Question 15

Planning contravention notice

Answer 15

requires the recipient to
provide information about operations, use, or activities being carried out on the land and any
matter relating to the conditions attached to a planning permission

Question 16

Enforcement notice

Answer 16

From 25 April 2024, LPAs have the power to issue enforcement warning notices
when it appears that there has been a breach of planning control. The enforcement
warning notice is an invitation to the recipient to regularise the breach by applying for a
retrospective planning permission.

Question 17

Who should the enforcement notice be served to?

Answer 17

owner, occupier and any other person
having an interest in the land, such as a mortgagee, and will become effective 28 days after
service.

Question 18

Can Enforcement notice be appealed ?

Answer 18

Yes enforcement notice can be appealed.

Question 19

Stop Notice

Answer 19

LPA can serve a temporary stop notice, effective for
28 days only, which gives time for further investigation. In extreme cases, the LPA can apply to
court for an injunction.

They need to serve enforcement notice first.

Question 20

Breach of condition notice

Answer 20

can only be served where the breach of planning
control is a breach of a condition attached to a planning permission.

There is no right of appeal against the service of a breach of condition notice.

Question 21

Injunction

Answer 21

restrain an actual or apprehended breach of
planning control.

In England, the LPA must take enforcement action within 10 years of the alleged breach.

However, for breaches involving operational development (such as building works) or
changing the use of a building to use as a single dwelling house that took place before 25
April 2024, the time limit is the one that applied before this date, which is within four years of
the alleged breach.

Question 22

What happens if you do not comply with notice?

Answer 22

Failure to comply with one of these planning control notices is an offence punishable with a fine.

Question 23

Building Regulation Control

Answer 23

health
and safety aspects of buildings being constructed or altered and they control the materials
and construction methods used.

Question 24

Time limit for bringing a prosecution regarding building control

Answer 24

In England there is now no time
limit for bringing a prosecution: prior to 1 October 2023 the prosecution had to be brought within
six months of the breach being discovered and within two years of completion of the building
work.

Question 25

Can building authority serve enforcement notice.

Answer 25

Yes. In England, the time limit is within 10 years of completion of the work.

Question 26

Can a Buyer ask the seller to obtain a regularisation certificate.

Answer 26

Yes. A buyer can ask the seller to obtain a regularisation certificate from the building control
authority which lists the work required to bring the building up to standard.

Question 27

What is a listed building

Answer 27

A listed building is one that has been included in a list of buildings of special architectural
or historic interest by the relevant government department.

In England, this is currently the
Department for Culture, Media and Sport with the assistance of Historic England.

There are
three grades of listing (Grade 1, Grade 2* and Grade 2) and the listing includes 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 since before 1 July 1948.

Question 28

Conservation area

Answer 28

LPAs are obliged to designate as conservation areas any parts of their own area that are of
special architectural or historic interest, the character and appearance of which it is desirable
to preserve or enhance.

Question 29

What is an Energy Performance Certificate?

Answer 29

An EPC is produced by an accredited energy assessor and
the seller must make one available to the buyer, free of charge, at the earliest opportunity,
preferably within 7 days of first marketing and in any event within 28 days.

Question 30

What are the two steps solicitors need to take in a transaction?

Answer 30

Firstly, they will need to check what has been agreed
at the marketing stage and that the buyer has been provided with an Energy Performance
Certificate (‘EPC’) for the property.

Secondly, it is important to establish the degree of consensus between the parties and identify
any outstanding issues that may cause delay, frustration and additional costs later in the
transaction.