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Property Law & Practice > SGS 2 - Planning & Pre-Contract Enquiries > Flashcards

SGS 2 - Planning & Pre-Contract Enquiries Flashcards

1. understand requirements for planning permission, building regulations approval and Listed Building Consent as well as the consequences of breaching them; 2. appreciate the importance of environmental considerations; 3. explain the pre-contract searches and enquiries which are undertaken in a property transaction; and 4. interpret the replies to those pre-contract searches and enquiries

1
Q

Which statute sets out when planning permission is required?

A
  • S57(1) Town country planning act
    1) Building works
    2) Material change in use
  • Might need PP for both components
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2
Q

Where is development defined?

A
  • S55(1) TCPA
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3
Q

Who considers planning applications in an area?

A
  • Local council / local planning authority
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4
Q

What are material matters that the local planning authority will consider?

A
  • Proposed development on road safety
  • Potential of disturbance
  • Impact on character of surroundings
  • Loss of light
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5
Q

Are all material changes of use / building works considered as development?

A
  • No
  • Not always necessary to make a formal application to LPA
  • Permitted development
  • In the GPDO 2015
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6
Q

Where are ‘building works’ defined in the statue and how?

A
  • S55(1A) TCPA

- Demolition / rebuilding / structural alterations

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7
Q

Give one key type of building work that does not constitute development and does not require PP?

A
  • S55(2)(a) TCPA express exclusions
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8
Q

How can LPA disapply permitted development?

A
  • By giving Article 4 direction
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9
Q

What is a material change of use?

A
  • When the use of a property is changed from one use class to another
  • E.g. a change from Class B1 to Class A3
  • Or from class A1&raquo_space; A3
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10
Q

Which checks does the buyers solicitor need to do?

A
  1. Past work / changes of use

2. GPDO 2015 - check for historical changes

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11
Q

What happens if there is a breach of planning permission?

A
  1. Enforcement notice
  2. Stop notice
  3. Planning contravention notice
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12
Q

What is included in an enforcement notice re breach of planning permission?

A
  • Land to be restored to condition it was in before development
  • Secure compliance w/ conditions imposed by planning permission
  • Compliance = does not automatically discharge the notice, is a continuing obligation to comply with the notice
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13
Q

What effect does a stop notice have?

A
  • Prohibits immediately the carrying out of activities in breach of planning legislation
  • Has to come after the enforcement notice
  • Cant serve one to stop use of building as a dwelling house if activity has been carried out for more than 4 years
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14
Q

What effect does a planning contravention notice have?

A
  • Flushes out info about POTENTIAL planning breaches
  • May lead to enforcement notice
  • When there is reasonable belief that breach of planning legislation has occurred
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15
Q

Where are the time limits for enforcement action to be taken found in the statute?

A
  • s171B TCPA
  • building works - 4yrs
  • mat change of use - 10 yrs
  • single dwelling house material change of use - 4 yrs
  • PP breach - 10 YRS
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16
Q

What is the rule in regards to planning permission for listed buildings?

A
  • Assume that any development being carried out in relation to Listed Building requires formal application for planning permission
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17
Q

Is there any time limit for enforcement re works that have been carried out without Listed Building Consent?

A
  • No time limit
  • Criminal sanction against original perpetrator
  • Rectification works can be required by subsequent owners + to the cost of the owner
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18
Q

Where is ‘conservation area’ defined?

A
  • S69(1) Planning Act 1990
  • Special / architectural or historical interest
  • Stricter planning controls
    • There is no time limit for enforcement for the demolition of a building in a Conservation Area
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19
Q

Where is ‘conservation area’ defined?

A
  • S69(1) Planning Act 1990
  • Special / architectural or historical interest
  • Stricter planning controls
    • There is no time limit for enforcement for the demolition of a building in a Conservation Area
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20
Q

What are some examples of stricter planning controls?

A

Ø Article 4 direction

Ø Onerous planning conditions

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21
Q

What is the effect of an article 4 direction?

A
  • Formal application would need to be made to the LPA, even for minor works and material changes of use.
  • Gives LPA much greater control over changes within Conservation Area
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22
Q

Explain what is meant by ‘onerous planning conditions’?

A
  • Planning conditions which form part of a planning permission might specify a particular type / quality / colour of paint or bricks used
  • So that external appearance of property remains in keeping with rest of neighbourhood
    Ø Phillippa Cadogan
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23
Q

Is building regulations approval the same as planning permission required?

A
  • No it is separate & additional, must be expressly obtained
  • Have to submit full plans / serve notice on the local authority Building Control Service before such works start
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24
Q

When can the local authority take proceedings for a breach of the requirement for Building Regulations Approval?

A
  • Within 12 months of any infringement
  • But effectively no time limit because of 36(6) Building Act 1984
  • COTTINGHAM V ATTEY BOWER
25
Q

What happened in the case of Cottingham v Attey Bower?

A
  • Effect of s36(6) building act
  • States that solicitor needs to take all practical and reasonable steps to get copies of building regulation approvals
  • In this case the app for building regulation had been rejected - buyer solicitor failure to take steps to actually get copies of the building regulations approvals = negligence.
26
Q

Who is building regulations approval required by?

A
  • A party that is actually carrying out the building works
  • If developer is changing use of property but that change is accompanied by building works&raquo_space; building regulation approval not required
27
Q

Who is a class A person under the Environmental Protection Act?

A
  • Person who caused / knowingly permitted pollutant to land

- Someone who buys and does not remedy it

28
Q

Who is Class B person under the EPA?

A
  • The person who owns / occupies the land for the time being
29
Q

Which searches and enquiries ALWAYS need to be carried out?

A
  • LLC 1: Local Land Charges Search

- CON29: Enquiries of Local Authority

30
Q

What does LLC1 require?

A
  • Register on the local land charges register
  • Financial / relates to use of the land
  • Not conclusive
  • Can rely on one that is less than 3 months old at the time of completion
31
Q

What is exclusive about the LLC 1 that the CON 29 does not include?

A
  • Conservation area

- Listed building status

32
Q

When is the CON 29 search carried out?

A
  • At same time as the LLC1
  • CON 29 = list of standard enquiries.
  • There is an overlap between the 2. this also shows which have been applied for and refused
33
Q

Who is obliged to maintain public highways?

A
  • Local authority
  • But private roads have to be maintained by landowner
  • Frontagers = people who have to bring private roads up to adoptable standard
34
Q

When solicitors refer to the “Local Search”, what are they actually referring to?

A
  • The LLC1 and CON 29, and CON29O if used
35
Q

What does the Highways Search show?

A
  • Send letter to LA
  • Public road that can be used by anyone
  • Highways - to check that the boundary of property abuts a public highway
  • Would include a plan - showing exactly where the highway ends and private land begins
36
Q

What does the Drainage of Water Search show?

A
  • Sent to relevant water service in the area

- Residential - CON 29DW

37
Q

What is the Desktop Environmental Search?

A
  • Desktop = online
  • Confirms if the property has ever been used for a contaminative use, if it is likely to flood / subside, and will confirm land uses within 250m of property
  • Have to do Phase 1 / 2 environmental survey if there is possibility of contamination at the site
38
Q

What does Phase 1 environmental survey include?

A
  • Desktop study

- Site visit

39
Q

What does Phase 2 environmental survey include?

A
  • More detailed
  • Taking and testing soil / water samples
  • After phase 1 that has identified actual or potential contamination that requires further investigation
40
Q

Explain Pre-Contract Enquiries of the Sellers Solicitors?

A
  • Not a search
  • CPSE 1 - commercial property standard enquiries
  • Cover a wide range of matters
41
Q

What happened in the case of WILLIAM SINDALL V CAMBRIDGESHIRE?

A
  • Seller should be mindful of saying they are not sure of something
  • This asserts that they have made reasonable investigations into the matter
42
Q

What happened in GORDON V SELICO ltd?

A
  • Seller cannot deliberately mislead the buyer
  • Cannot conceal defects / lie in enquiries.
  • Breach of contract liability
43
Q

Who instructs a surveyor to inspect the property?

A
  • Buyer themselves and not their solicitor
44
Q

What are the 3 levels of survey available?

A
  • Valuation report
  • Homebuyer survey
  • Full structural survey
45
Q

What is included in the VALUATION REPORT survey?

A
  • Made by valuer, on behalf of lender
  • To make sure value is accurate
  • Structure and condition of property not considered
  • Valuer has no duty to buyer
46
Q

What is included in the HOMEBUYERS survey?

A
  • In residential property transations by a surveyor
  • More detailed than valuation report
  • Lender often arranges for valuer to do it
  • Incorporates valuation and also condition of property
47
Q

What is included in the FULL STRUCTURAL survey?

A
  • Most thorough but most expensive
  • Detailed examination of condition of property
  • Essential for old buildings
  • Ideally this is always commissioned
48
Q

Apart from surveys, what else should the buyer check for?

A
  • Inspect property carefully for signs of occupation by anyone other the seller
  • Interest of person in actual occupation can be overriding interest in registered land
  • Throws up patent third party interests e.g. neighbour well trodden right of way
49
Q

What is the chancel repair search?

A
  • Affects properties where there is medeival church

- Repair liability has attached to ownership of the properties within the parish

50
Q

When exactly does the chancel repair liability apply?

A

Before 13 Oct 2013 - Chancel repair was overriding interest. Did not requre registration to bind the buyer

On or after 13 Oct 2013 - chancel repair liability lost its overriding status. Does not mean buyer will now buy free of any liability.
After = can transfer free of liability if there is no notice on the Charges register.

51
Q

What is the OS1 search?

A
  • Search giving the person making the search priority to register their interest at the Land Registry before anyone else does
52
Q

What is the SIM search?

A
  • Search of the index map at the Land Registry
  • Shows if any third party titles are registered against the title to the property
  • Ascertains the owner of neighbouring land
  • Reveals if any third party titles e.g. registered lh titles are registered against the title to the property.
53
Q

What is a CON29O

A
  • Optional local authority search
  • LADENBAU CASE - solicitor was held to be negligent for failing to search Common Land Register if location of property indicated it should have done
54
Q

What does a Companies House search achieve?

A
  • If seller is a company - this is prudent
  • Confirm company number, check name, check company is solvent
  • Any fixed charges over company assets
55
Q

What is the CON29M search?

A
  • Coal mining and brine search

- If property is located in area that is affected

56
Q

What is the Waterways search? When is it necessary?

A
  • When a property adjoins a waterway or has a waterway passing through it
  • See who has liability for the maintenance of the river bank or canal
  • If there is any drainage / fishin rights
  • If there are any water abstraction licenses
  • This does not provide information about flooding > desktop search does
57
Q

Which check will show if building is a conservation area?

A
  • LLC1 result within Part 3
58
Q

RPL wishes to build an accommodation block for its delegates and is considering constructing a new two-storey building comprising 20 bedrooms and bathrooms in the grounds of Elton Hall (the ‘Works’).
What consents would be required for the Works?

A
  • The Works would constitute “development” and, as such, they would require planning permission (for building works) pursuant to ss.55 and 57 TCPA 1990.

Property Law & Practice (6 decks)

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