Property 6

Question 1

v6cnxgwbfz3!A±ZZWhat is planning law?

Answer 1

• It restricts development of land to ensure that uncontrolled building does not take place. * Planning law is imposed by local authorities.

Question 2

How is planning law relevant to property transactions?

Answer 2

It imposes requirements on building on, and alteration of, property. * A seller e.g. 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. Also, if the buyer wants to make changes to the property after the sale, the buyer’s solicitor will want to make sure that such alterations are permitted. Planning matters often come up in the context of the buyer’s pre-contract searches: PIF or CPSE and local search

Question 3

Apart from statutory controls over the development of land, how else might planning restrictions apply?

Answer 3

Land may be subject to private planning restrictions. * These may take the form of restrictive covenants which might prohibit or limit development (e.g. a covenant not to build a further dwelling on land or not to build on the land at all). * The buyer’s solicitor should carefully investigate title to establish the existence of any such covenants.

Question 4

Can planning take precedence over matters of title

Answer 4

No, planning Is Separate from Title! On the exam, do not confuse planning issues and title issues. 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 does not in any way take precedence over matters of title.

Question 5

Which law governs development of land in England and Wales?

Answer 5

The Town and Country Planning Act 1990

Question 6

Under the Town and Country Planning Act 1990, when is planning permission required?

Answer 6

Planning permission (i.e. written consent from the local authority) is required for the carrying out of any development of land.Development is defined as: (i) Carrying out building, engineering, mining, or other operations in, on, over, or under land; or (ii) Making any material change of use of any buildings or other land.

Question 7

What are ‘building operations’ under the Town and Country Planning Act 1990?

Answer 7

• Structural changes or additions to a building or* building something on a piece of land.

Question 8

What is a ‘material change of use’ under the Town and Country Planning Act 1990?

Answer 8

Material change of use is interpreted broadly and covers the conversion of one house to two flats or a house to a shop and a flat.It is not defined in statute to give the local authority some discretion

Question 9

What type of work will not require planning permission?

Answer 9

Works which are not ‘development’, like minor internal works (though note if the property is a listed building, consent will be needed for any significant works)

Question 10

What are the two types of planning permission?

Answer 10

• Deemed * Express (as a result of a formal application to the local authority)

Question 11

What is ‘deemed planning permission’?

Answer 11

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. Note local authorities can disapply this by passing an Article 4 Direction Examples:* small home extensions within certain size limits* porches* fences* conservatories

Question 12

What is an Article 4 Direction?

Answer 12

The local authority can exclude locations, e.g. a conservation area, area of outstanding natural beauty etc. from the permitted development rights by passing an Article 4 Direction. * This enables the local authority to maintain stricter control over development in its area. * An Article 4 Direction means that if a property owner wants to make even minor changes to the property (e.g. erecting a porch, installing new windows, roof tiles), they will need to make an application for express planning permission.

Question 13

How would a buyer become aware of an Article 4 Direction?

Answer 13

Local search

Question 14

What are the two types of express planning permission?

Answer 14

• Outline permission* Detailed permission

Question 15

What is outline permission?

Answer 15

Broad permission as to the principle of development on the land in question subject to ‘reserved matters’ (these are issues such as the detail of the materials to be used, which must be approved by the local authority). * If there are reserved matters, there will have to be a full application within three years of the outline permission to obtain approval on those matters. * Work must start within two years from approval of the reserved matters.

Question 16

If outline permission is subject to reserved matters, what will be required and in what time limit?

Answer 16

A full application within three years of the outline permission to obtain approval on those matters.

Question 17

When must work commence where reserved matters have been approved in outline permission

Answer 17

Two years from approval

Question 18

What is detailed permission?

Answer 18

A more complex and costly application, involving the submission of full plans to the local authority.* It is highly likely that full permission will be subject to a number 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 the building is completed (e.g. that the dwelling in question must only be occupied by someone working in agriculture).* After detailed permission is issued, the development must commence within three years of the date of the permission. Otherwise, the permission lapses.

Question 19

After detailed permission is issued, within what timeframe must the development begin?

Answer 19

Within three years of the date of the permission

Question 20

What are the 4 situations in which planning permission is likely to be relevant on the exam?

Answer 20

• A buyer is buying land to develop/build on* A seller has made changes to the property* A buyer intends to alter/extend/change current use of the property* A buyer is buying a newly built property.

Question 21

If any development lacks planning permission or fails to comply with a planning condition, what can the local authority do?

Answer 21

Take enforcement action against:* the owner or occupier of the property/affected land, or * any other interested party.Enforcement action could include requiring full compliance with planning laws and may involve significant expense if the development works must be pulled down or rebuilt according to planning conditions.

Question 22

Why is it crucial that a buyer’s solicitor finds out before exchange of contracts whether all relevant planning requirements have been complied with?

Answer 22

Planning problems run with the property. The new buyer cannot rely on the fact that it was a previous owner who carried out the work without the required permission and they could be liable if the authority takes enforcement action.

Question 23

A previous owner added a large annex to the house two years ago without getting planning permission for the building works. What should the buyer’s solicitor advise the buyer?

Answer 23

Not to proceed until the seller had obtained retrospective planning permission. This is because the buyer could have enforcement action taken against them. This is not a situation where indemnity insurance would be an acceptable solution.

Question 24

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

Answer 24

Serve an enforcement notice, which must state:* the nature of breach* the steps required to remedy the breach and * the time limit to complete the required work. The local authority could also apply for an injunction to prevent work from taking place or issue a ‘stop notice’. This requires the party carrying out the work to cease the work immediately. These remedies are fairly rare.

Question 25

What is the timeline for issuing enforcement notices regarding the following:* unauthorised building works * all other breaches

Answer 25

• Unauthorised building works: four years of the breach* All other breaches: 10 years of the breach. If, e.g. there is a breach of conditions attached to a planning permission, the enforcement notice must be served within 10 years of the date of the first breach.Note these limits do not apply to listed buildings

Question 26

How would a buyer become aware that a property is a listed building?

Answer 26

The local search (and PIF) may reveal that the property is a listed building.The seller should supply a copy of the notice of listing with the contract package. Failing that, the buyer’s solicitor can check the list maintained on the Historic England website.

Question 27

What is a listed building?

Answer 27

The building has been placed on a statutory list and is likely to be an old building of special architectural interest.

Question 28

What two things are required for to demolish, extend, or alter a listed building?

Answer 28

• Listed building consent form from the local authority and* Planning permissionChanges to the property are much more restricted.

Question 29

Where are listed buildings actually listed?

Answer 29

The building will appear on a list maintained by Historic England.* The listing will cover the building and everything within its ‘curtilage’ (usually meaning the garden and immediate area around the buildings). * Buildings are listed according to their importance: Grade I includes buildings of exceptional interest; Grade Il are important buildings of more than special interest (most are Grade II)

Question 30

If a building is listed, what advice should a buyer’s solicitor give them?

Answer 30

Have a full structural survey of the property carried out

Question 31

Is special permission required to alter/develop a garage or outbuilding in the garden of a listed building?

Answer 31

Yes, listing status does not apply just to the building in question but also to any structures or land around it. Any change to curtilage structures will thus be covered by the listing, and listed building consent is likely to be required for this work as well.

Question 32

What is the time limit for enforcement action by a local authority regarding breaches of listed building status?

Answer 32

There is no time limit for enforcement. * It can be served on the current owner of a building irrespective of whether they, or a previous owner, carried out the unauthorised work.* Failure to comply with an enforcement notice is also a criminal offence. Thus, dealing with a listed building is risky.

Question 33

What are building regulations?

Answer 33

Building regulations are a series of statutory standards in place to ensure that new buildings and constructions (includes extending/altering) are built according to certain standards of health and safety. * Note that building regulations are linked to building work but are separate from planning permissions. * Building regulations are governed by Building Control, a department within the local authority that is concerned with ensuring health and safety standards are met when construction takes place.

Question 34

If work does not require planning permission, must it comply with building regulations?

Answer 34

• Yes, there is a list of works covered by building regulations (much longer that requiring planning permission). * In addition to actual building work at a property (new build or alteration of an existing structure), building regulations cover such things as: installation of windows, electrical works, or installation of a boiler.

Question 35

How is it ensured that building regulations are complied with?

Answer 35

• A building control officer will inspect the work being carried out at various stages * Once satisfied with the completed work, will issue a building regulations completion certificate (sometimes known as a “final certificate”).

Question 36

If building work was done on a property which did not require planning permission (e.g. a small extension to a dwelling or a porch), what must the buyer’s solicitor do?

Answer 36

• Check whether relevant consents and final certificates have been issued by Building Control for the work if the buyer is purchasing a new or recently altered property. * The buyer will find out if work has been done by checking the PIF, the pre-contract enquiries of the seller and/or asking their surveyor to inspect the property.

Question 37

Within what time limit can the local authority take enforcement action against a person who does not comply with building regulations?

Answer 37

• Within 12 months from the date of the breach. * Note that 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 38

If the buyer’s solicitor does not obtain copies of building regulation approvals and advise the buyer of the consequences (i.e. that the work may not comply with building regulations), what may the consequences be for the solicitor?

Answer 38

They may be sued by their client for negligence.

Question 39

If there has been a breach of planning laws or building regulations and the relevant enforcement period has passed, what might the buyer ask the seller to provide to protect them?

Answer 39

Indemnity insurance at their own cost to deal with the possibility of enforcement. It is 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 40

Where can a buyer find out about:* whether the property is listed* any planning permissions* building regulation completion certificates * any enforcement action that has been/is being taken

Answer 40

Local search

Question 41

What are use classes?

Answer 41

• The Town and Country Planning (Use Classes) Order 1987 (as amended in 2020) puts uses of land and buildings into various categories known as ‘Use Classes’. * 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 42

What are the categories of use classes?

Answer 42

• Class E: Commercial, business, and service * Class F.1: Learning and non-residential institutions* Class F2: Local community

Question 43

What use class are: * Shops * Financial and professional services such as banks and building societies* Food and drink (mainly on premises) * Business (office, research and development, and light industrial processes) * Non-residential institutions (medical or health services, crèches, and day nurseries* Assembly and leisure (indoor sport, recreation or fitness, gyms)

Answer 43

E

Question 44

What use class are nonresidential institutions (education, art gallery, museum, public library, public exhibition hall, places of worship, law courts)

Answer 44

F.1

Question 45

What use class are shops no larger than 280 square meters (selling mostly essential goods and at least 1 km from another similar shop, community halls, outdoor sport/ recreation areas, indoor or outdoor swimming pools, skating rinks)

Answer 45

F.2

Question 46

Is planning permission required to change use within the same class?

Answer 46

Generally no

Question 47

Is planning permission required to change the use of a greengrocer’s shop to a shoe shop?

Answer 47

No as these uses both fall within the same Use Class for shops (A1).

Question 48

Is planning permission required to change the use of a greengrocer’s shop to a shoe shop if building work is associated with the proposed change of use?

Answer 48

Yes

Question 49

If it is proposed to change from one Use Class to another, is planning permission needed?

Answer 49

Yes (unless a permitted development). * 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 50

When will a change from one Use Class to another not require planning permission?

Answer 50

If covered by ‘permitted development’ rights e.g. a change in Use Class from a restaurant to a shop. * However, 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. * The local authority can remove permitted development rights by passing an Article 4 Direction.