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
2
Q
Where is development defined?
A
- S55(1) TCPA
3
Q
Who considers planning applications in an area?
A
- Local council / local planning authority
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
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
6
Q
Where are ‘building works’ defined in the statue and how?
A
- S55(1A) TCPA
- Demolition / rebuilding / structural alterations
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
8
Q
How can LPA disapply permitted development?
A
- By giving Article 4 direction
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»_space; A3
10
Q
Which checks does the buyers solicitor need to do?
A
- Past work / changes of use
2. GPDO 2015 - check for historical changes
11
Q
What happens if there is a breach of planning permission?
A
- Enforcement notice
- Stop notice
- Planning contravention notice
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
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
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
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
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
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
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
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
20
Q
What are some examples of stricter planning controls?
A
Ø Article 4 direction
Ø Onerous planning conditions
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
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
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
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
What happened in the case of Cottingham v Attey Bower?
- 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
Who is building regulations approval required by?
- 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 >> building regulation approval not required
27
Who is a class A person under the Environmental Protection Act?
- Person who caused / knowingly permitted pollutant to land
| - Someone who buys and does not remedy it
28
Who is Class B person under the EPA?
- The person who owns / occupies the land for the time being
29
Which searches and enquiries ALWAYS need to be carried out?
- LLC 1: Local Land Charges Search
| - CON29: Enquiries of Local Authority
30
What does LLC1 require?
- 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
What is exclusive about the LLC 1 that the CON 29 does not include?
- Conservation area
| - Listed building status
32
When is the CON 29 search carried out?
- 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
Who is obliged to maintain public highways?
- Local authority
- But private roads have to be maintained by landowner
- Frontagers = people who have to bring private roads up to adoptable standard
34
When solicitors refer to the "Local Search", what are they actually referring to?
- The LLC1 and CON 29, and CON29O if used
35
What does the Highways Search show?
- 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
What does the Drainage of Water Search show?
- Sent to relevant water service in the area
| - Residential - CON 29DW
37
What is the Desktop Environmental Search?
- 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
What does Phase 1 environmental survey include?
- Desktop study
| - Site visit
39
What does Phase 2 environmental survey include?
- More detailed
- Taking and testing soil / water samples
- After phase 1 that has identified actual or potential contamination that requires further investigation
40
Explain Pre-Contract Enquiries of the Sellers Solicitors?
- Not a search
- CPSE 1 - commercial property standard enquiries
- Cover a wide range of matters
41
What happened in the case of WILLIAM SINDALL V CAMBRIDGESHIRE?
- Seller should be mindful of saying they are not sure of something
- This asserts that they have made reasonable investigations into the matter
42
What happened in GORDON V SELICO ltd?
- Seller cannot deliberately mislead the buyer
- Cannot conceal defects / lie in enquiries.
- Breach of contract liability
43
Who instructs a surveyor to inspect the property?
- Buyer themselves and not their solicitor
44
What are the 3 levels of survey available?
- Valuation report
- Homebuyer survey
- Full structural survey
45
What is included in the VALUATION REPORT survey?
- 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
What is included in the HOMEBUYERS survey?
- 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
What is included in the FULL STRUCTURAL survey?
- Most thorough but most expensive
- Detailed examination of condition of property
- Essential for old buildings
- Ideally this is always commissioned
48
Apart from surveys, what else should the buyer check for?
- 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
What is the chancel repair search?
- Affects properties where there is medeival church
| - Repair liability has attached to ownership of the properties within the parish
50
When exactly does the chancel repair liability apply?
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
What is the OS1 search?
- Search giving the person making the search priority to register their interest at the Land Registry before anyone else does
52
What is the SIM search?
- 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
What is a CON29O
- 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
What does a Companies House search achieve?
- If seller is a company - this is prudent
- Confirm company number, check name, check company is solvent
- Any fixed charges over company assets
55
What is the CON29M search?
- Coal mining and brine search
| - If property is located in area that is affected
56
What is the Waterways search? When is it necessary?
- 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
Which check will show if building is a conservation area?
- LLC1 result within Part 3
58
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?
- The Works would constitute “development” and, as such, they would require planning permission (for building works) pursuant to ss.55 and 57 TCPA 1990.
