Planning and pre-contract searches and enquiries

Question 1

What searches and enquiries must always be carried out?

Answer 1

• LLC1 (Local Land Charges Act 1975)
• CON29 (planning and building regs - applications that have been refused too)
• Highways search (boundary of prop abuts public highway?)
• Drainage and Water Search - residential CON 29DW; commercial properties will usually opt for the tailored searches offered by water companies as liability for incorrect replies is much higher. Water Industry Regs (Schemes for Adoption of Private Sewers) 2011 = ownership of all private sewers and lateral drains connected to public sewerage now
  responsibility of statutory sewerage undertakers.
• Desktop environmental search (Law Soc practice note requires sols to undertake) buyers will be liable for clean up if land contaminated. CON29 only shows if notices served.
  Phase 1 = desktop and site visit
  Phase 2 = testing soil and water samples
• Commercial Property Standard Enquiries/ CPSE.1 (extensive but also mainly useful to throw up unregistered 3rd party interests) usually sent buy seller’s sol at beginning. Cannot use phrase ‘not so far as seller is aware’ as amounts to assertion seller made reasonable investigations. But cannot deliberately mislead.

H/e caveat emptor applies.

• Chancel repair search
• SIM - any 3rd party titles reg’d against the property? i.e. leases

Question 2

Describe what needs to be borne in mind re Chancel Repair searches and pre and post 13/10/2003?

Answer 2

If medieval church in area may be liable for tithes! Mostly a potential in rural areas.

After 13th October 2003: only properties that were transferred for valuable consideration on or after the relevant date can transfer free of liability if no notice on Charges reg.

Thus if not transferred for valuable consideration since the relevant date risk of notice to protect chancel repair liability being placed on title. (e.g. parent co transfers to subsidiary for nil consideration).

Also if not for valuable consideration pre 13th Oct 2003 then notice can still be placed on title until transfer for valuable consideration occurs!

Thus between exchange and completion dangerous as buyer bound! OS1 essential and chancel repair search before exchange!

Insurance should also be bought.

Question 3

What fundamental principle is contained in s.57(1) Town and Country Planning Act 1990?

Answer 3

Planning permission is required for ‘development’.

Question 4

s.55(TCPA) 1990 defines ‘development’ as what?

Answer 4

Development is two limbed and therefore planning permission (s.57(1)) may be required for both elements.

a) the carrying out of building, engineering, mining etc in, on, over or under land.
b) the making of any material change in use of any buildings or other land

Question 5

What three types of building works are there in terms of sanction by statute?

Answer 5

Building works which do not constitute development and therefore do not require planning permission. (55(2)(a) TCPA.

Building works which do constitute development, but are ‘permitted development’ per the GPDO. They are automatically permitted. (h/e LAs have the power to disapply).

Part 1 of Sch 2 - permitted residential.

Part 2 of Sch 2 - permitted commercial (much more restricted).

Building works that fall outside of these…

Question 6

What building works do not constitute ‘development’?

Answer 6

Per 55(2)(a) building works that do not constitute development and thus do not require planning permission are those that:

• only affect the interior of the building OR do not materially affect the exterior appearance
• do not provide additional space underground

Question 7

Does interior work, external work not materially affecting appearance and work that does not create space underground constitute development?

Answer 7

No!

Thus can be carried out without application for planning permission!

Question 8

What does s.55(1A) state does constitute building works?

Answer 8

• demolition of buildings
• rebuilding
• structural alterations or additions to buildings
• other operations normally undertaken by a person carrying on business as a builder

Question 9

What must you refer to if for e.g. a residential client wishes to build an extension?

Answer 9

So per 55(1A) this does constitute ‘building works’ which per 57(1) planning permission is required. However, Part 1 of Sch 2 of the GPDO may automatically permit this.

Part 1 (development within curtilage of a dwellinghouse) Class A permits the ‘enlargement, improvement or other alteration of a dwellinghouse’ subject to restrictions on sq footage and height.

Question 10

What part of the GPDO must you refer to if your commercial client wishes to carry out building works?

Answer 10

Part 2 Schedule 2 of GPDO 2015.

Question 11

What must you also check and where to ensure that development is permitted?

Answer 11

Check if an Article 4 direction has been made by the LA via a LLC1. If so this means the GPDO has been disapplied and planning permission will be required.

Question 12

What part of the GPDO permits material changes of use without need for planning application?

Where are the use classes defined?

Answer 12

Part 3 of Schedule 2 GPDO sets out the changes between use classes that are automatically permitted.

The use classes are defined in the Town and Country Planning (Use Classes) Order 1987.

Question 13

What must the buyer’s sol check in regards to planning permissions?

Think past breach; past and continuing and future intended works/ use.

Answer 13

You will need to raise pre-contract enquiries of the seller’s sol as well as via the CON29 to discover the following:

Must ensure all planning documentation relevant to the purchase is seen and checked prior to exchange of contracts!

The seller will have to correct planning irregularities and this may need to be a clause itself.

Past works or changes of use? If in breach and still extant at time of purchase, must ensure planning permission was obtained and if not get retrospective consent. n.b. enforcement periods???????

Question 14

What does section 171B TCPA lay out?

Answer 14

Time limits for enforcement notices made against breach of planning permission or lack thereof.

Question 15

What is the time limit for enforcement against building works done w/o planning permission?

Time limit for material change of use of dwelling house?

Answer 15

4 years following substantial completion of the works.

4 years from date of the change.

Question 16

What is the time limit for material changes of use in commercial context?

Time limit for breach of a condition of a planning permission? What else needs to be noted?

Answer 16

10 years within which enforcement of a notice can be made.

Breach of a condition of planning permission has a 10 year enforcement period h/e if the condition was an ongoing one and the permission was granted more than 10 years ago, it can be breached and given notice against at anytime. e.g. hours of operation etc.

Thus must read conditions attached to planning permissions!

Question 17

What penalties are brought under Enforcement Notices?

Answer 17

• Can require the land be restored to how it was prior to the unauthorised works.
• Enforce compliance with any conditions of any planning permissions not adhered to.
• Can also impose continuing obligations on the land owner so if breach straddles owners, buyer must be made aware of this.

Question 18

What other types of Notices are there?

Answer 18

• Stop Notice - prohibits immediately works in contravention, but cannot be made w/o an EN.
• Planning Contravention Notice - to flush out info in order to serve an EN. Reasonable belief breach of planning leg.

Question 19

What does the buyer’s sol need to do in regards to future plans for works or change of use?

Answer 19

• Check current use class
• Does the new use amount to a ‘material change of use’ (Refer to Use Classes Order and part 3 of sch 2 of GPDO)
• If so a formal application for planning permission will be required
• Will the building works require planning permission? Check GPDO Part 1 or 2 Sch 2.

‘Outline planning perm’ can be sought to ascertain LPA likely to approve in principle. Detailed app must be submitted within 3 years….PCN may then be needed if dodgy?….

Question 20

In the context of the LPC what may you assume about consents required for listed building works or ‘development’ of any kind?

Answer 20

Assume that all alterations, internal, external and however minor - require Listed Building Consent.

‘Development’ - e.g. erection of a building, pool or container in the curtilage of a listed building, requires formal application for planning permission.

It is required in addition to any planning permissions.

Question 21

What are the consequences of not obtaining Listed Building Consent for works?

Answer 21

• Criminal sanctions against original perp
• No time limit!
• Rectification works can be required to be carried out by subsequent owners at their expense

Question 22

What is the aim of s.69(1) Planning (Listed Buildings and Conservation Areas) Act 1990?

What powers are used to enforce this?

Answer 22

The preservation and enhancement of an area of ‘special architectural or historical interest, the character or appearance of which it is desirable to preserve or enhance’

Thus it provides for much stricter planning controls. LPAs will use Article 4 Directions under the GPDO.

The permissions will be so detailed as to specify types of paint, quality of bricks etc.

There is no time limit for enforcement of contravention.

Question 23

If planning permission is not required does that mean building regulations approval is not required either?

Answer 23

NO! Planning permission may be automatically permitted under the GPDO but Building Regulations approval must always be sought by serving notice of or submitting full plans to the LA Building Control Service.

Works must then commence within 3 years of approval.

Question 24

What happens once works have been completed following approval by Building Control Service of plans?

Answer 24

The LA will inspect the buildings and if satisfied will issue a Building Regulation Completion Certificate.

Question 25

What statutory instruments govern Building Regs regime?

Answer 25

• Building Act 1984
• Building Regs 2010
• Building (Approved Inspectors etc.) Regs 2010

Question 26

How are breach of Building Regs enforced?

What should a sol be mindful of?

Answer 26

LAs can take proceedings within 12 mths of an infringement, but per s.36(6) Building Act 1984 an LA can apply for an injunction at any time!

Thus there is effectively no time limit for enforcement!

The case of Cottingham highlights need for sol to take all reasonable and practical steps to ascertain if building regs approval have been obtained.

Buyer’s sol MUST obtain copies of approvals to ensure seller not lying!

Question 27

In light of contravention of building regs approvals being a strict liability offence, what must a buyer’s sol ensure seller does if breach of building regs found?

Answer 27

Must insist seller obtains a Regularisation Certificate.

Question 28

What does the Environmental Protection Act 1990 and 1995 provide for?

Answer 28

Portions liability upon the ‘appropriate person’ for clean up of contaminated land. Per s.57 EA 1995 contaminated land is that which appears to the LA to ‘be in such a condition, by reasons of substances in, on or under’ that sig is being caused or has potential to be caused, or significant pollution of controlled waters is being caused or sig possibility of’

Question 29

What must an LA do in regards to contaminated land?

Answer 29

s.57 EPA 1995 requires LAs to inspect, identify and maintain registers.

On discovering pollution/ contamination or poss of must serve Remediation Notices upon the ‘appropriate person’.

Question 30

What are the two classes of ‘appropriate person’ under s.57 EPA 1995?

Answer 30

Class A- original perpetrator of contamination - caused or knowingly permitted, also someone who buys and knowingly does nothing to remedy.

Class B - if no Class A can be found after reasonable enquiry than the current occupier/ owner will be liable.

Question 31

What are the optional extra searches that might need to be done on the facts?

Answer 31

• Local Authority CON 29O
• Company Search (check if co solvent - any floating charges over assets? Most impt in unregistered land where cannot check Charges Register!)
• After doing an initial search on Coal Authority’s online service and if near - CON29M - coal mining and brine - subsidence, compensation, current claims for loss or damage
• Waterways Search via the Canal and River Trust - adjoins waterway or has waterway passing through? Establish:
• liability for maintenance?
• RoW along banks or tow path
• drainage or fishing rights?

Common law duties (i.e. not Trust’s responsibility) = fully responsible, main duty is to ensure flow of water