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BS_APC - 2 > SoE Legal/Regulatory Compliance > Flashcards

SoE Legal/Regulatory Compliance Flashcards

1
Q

What is supersession?

A

Supersession is an undefined legal concept which effectively means that a landlord should not claim for the remedy of a tenant’s breach, because the landlord is proposing to do something else to the building which would supersede the need for the tenant to remedy their breach.

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2
Q

Under planning what are the use classes?

A

Class 1: Shops
Class 2: Financial and professional services (permitted to change to Class 1)
Class 3: Food and Drink (permitted to change to Class 1 & 2)
Class 4: Business
Class 5: General industrial
Class 6: Storage or distribution
Class 7: Hotels and Hostels
Class 8: Residential institutions
Class 9: Houses
Class 10: Non-residential institutions
Class 11: Assembly and leisure

Sui Generis - (in a class of its own) anything not included in the other classes.

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3
Q

When can you serve an interim dilapidation claim?

A

?? RICS guidance says any time during currency of lease, unless it is just before, at or after expiry when it is a terminal claim.

To any lease longer than 7 years with more than 3 years remaining (other would be terminal)

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4
Q

What does keep in good and substantial repair mean ?

A

That the building is to be kept in good condition during the course of the lease term. Clients can be protected via a SOC prior to the lease to protect against betterment.

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5
Q

Can you give me some examples of permitted development rights?

A

Permitted development rights are the right to carry out certain works without planning permission. These rights are contained within the The Town and Country Planning (General Permitted Development) (Scotland) Order 1992.

Examples of works :
Extension or alteration of industrial unit or warehouse does not exceed 25% of original floor area or original height
Change of use within a permitted use class i.e. class 2 to 1
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6
Q

What types of properties is building regulations not applicable?

A

Examples (included in Schedule 3):
• Temporary buildings during 12 month period not exceeding 28 consecutive days or total of 60 days
• agricultural buildings single storey
• Stand-alone buildings 8m² (except house or within 1m of boundary etc)

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7
Q

What is the time frame to make an appeal when a planning application is rejected?

A

3 months

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8
Q

Can you name some BS doc ?

A
  • 459 – Building Lime
  • 998 – Mortar
  • 8000-12 - Decoration
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9
Q

What is a Certificate of lawfulness?

A

For the purposes of this Act, uses and operations are lawful at any time if—

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason), and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

Certificates of lawfulness are a way of deciding whether a use or piece of building work is legal or not. Certificates can be given for completed developments or proposed developments.

Applications for certificates of lawfulness are not advertised and there is no requirement to notify neighbours. Any public comments on certificates of lawfulness will only be taken into account if they relate to the legality of the use or development under planning legislation.

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10
Q

What are the types of planning applications ?

A
  • Householder planning consent
  • Full planning consent
  • Outline planning consent
  • Reserved Matters
  • Listed building consent
  • Advertisement consent
  • Lawful Development Certificate (LDC)
  • Prior approvals (except the type listed below)
  • Removal/variation of conditions
  • Approval (Discharge) of conditions
  • Consent under Tree Preservation Orders
  • Notification of proposed works to trees in conservation areas
  • Non-material amendment of an existing planning permission
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11
Q

What is the main act in relation to planning ?

A

The Town and Country Planning (Scotland) Act 1997

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12
Q

What is the purpose of The Town and Country Planning (Scotland) Act 1997?

A

Takes account of the policies at national and regional level insofar as they affect the physical and environmental planning of its area; and. Provides the framework for local plans.

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13
Q

What legislation is linked to planning ?

A
  • The Town and Country Planning (Scotland) Act 1997
  • The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 altered the laws on granting of planning permission for building works, notably including those of the listed building system
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14
Q

What laws and regulation do you consider regarding dilapidations ?

A
  • Landlord and Tenant Act 1927
  • Dilapidations Protocol
  • Jarvis v Harris
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15
Q

What is the case law of Jarvis v Harris ?

A

What does Jervis V Harris Clause mean? A clause in a lease or tenancy agreement which allows the landlord to serve a notice on a tenant to carry out repairs. Where a tenant fails to do so, the landlord may enter, carry out the works itself and recover the costs from the tenant as a debt.

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16
Q

What is Planning ?

A

Planning seeks to guide the way our towns, cities and countryside develop. Includes the use of land and buildings and the appearance of buildings etc.

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17
Q

What can happen if you have made changes to your property that require planning permission ?

A
  • The LA can request a retrospective planning application for those works
  • If the retrospective planning application is refused. The LA can issue an enforcement notice which require you to put things back as they were.
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18
Q

What is an enforcement notice ?

A

Enforcement Notices are legal documents that require certain action be taken to remedy a breach of planning control. They are issued where development has taken place without the correct planning permission or outside the conditions of a planning permission.

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19
Q

What are the timescales attached to buildings that have not applied for planning permission ?

A

????

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20
Q

Can you give me some typical conditions attached to a planning application ?

A
  • The development hereby permitted shall be begun before the expiration of three years from the date of this permission
  • The development hereby permitted shall not be carried out other than in complete accordance with the approved plans
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21
Q

What is the definition of unauthorized work ?

A

Construction work carried out to a listed building without planning permission.

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22
Q

What is an article 4 direction ?

A

Removal of permitted development rights within a specific area to be defined. This could for example be within a conservation area. This then prompts the requirement to submit the relevant application. The reasons for the directions are normally to prevent development that would harm the character of the area. For this reason, the form of development normally allowed through the Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2011 has been restricted.

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23
Q

What is permitted development ?

A

Allowing specified works without needing to apply for planning permission, these are specific to the type of property. For example the rights of a residential house will differ to a commercial property.

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24
Q

What legislation does it fall under ?

A

The Town and Country Planning (General Permitted Development) (Scotland) Order 1992

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25
Do it apply to everywhere (The Town and Country Planning (General Permitted Development ) Order 2015) ?
No, areas can be removed under an ' Article 4 Direction''
26
Can you give me some examples of works that fall within and outside of permitted development ?
* Small extension * Loft conversion * Garage conversion * Porch * Roof lights not facing highway etc.
27
What is the aim of permitted development ?
Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. Permitted development rights are subject to conditions and limitations to control impacts and to protect local amenity.
28
What are the advantages of permitted development ?
Faster timescales, if your works fall within the parameters you are not at the mercy of the planning department and or committee
29
What is S106 notice ?
S106 of the Town and Country planning act provides that the local authority can enter into an agreement with a developer to restrict the development of land. It allows the LA to ensure that certain criteria will be met in order to approve a development. (compulsory purchase)
30
Give some examples of work where planning permission is required ?
* New build construction on a vacant site * New build extension that is not permitted development * Change of use that is not permitted change of use * Work to a building in a conservation area
31
What recourse if it would have been rejected (planning) ?
If there were grounds for appeal, a statement with the reasons of appeal with evidence can be submitted to the courts or secretary of state within 6 months of decision.
32
What is NPPF?
National Planning Policy Framework - Sets out government planning policies for England and how they should be applied. Published on 27th March 2012. Implemented to make the planning system less complex and more accessible and protect the environment. NPPF updated in 2018 with minor amendments in 2019.
33
Types of planning application ?
``` • Householder planning consent This form should be used for proposals to alter or enlarge a single house, including works within the boundary/garden of a house. It should be used for projects such as: – Extensions – Conservatories – Loft conversions – Dormer windows – Garages, car ports and outbuildings ``` • Full planning consent; You should use this application form to make a detailed planning application for development, excluding householder developments. For the purposes of this form, development includes building, engineering or other works, in, on, over or under land, or the making of any material change in the use of any buildings or other land. As such it should be used for: – Any works relating to a flat – Applications to change the number of dwellings (flat conversions, building a separate house in the garden) – Changes of use to part or all of the property to non-residential (including business) uses – Anything outside the garden of the property (including stables if in a separate paddock) • Outline planning consent Applications for outline planning permission seek to establish whether the scale and nature of a proposed development would be acceptable to the local planning authority, before a fully detailed proposal is put forward. This type of planning application allows fewer details about the proposal to be submitted. Once outline permission has been granted, you will need to ask for approval of the details (“reserved matters”) before work can start. • Reserved Matters Where outline permission has been granted, you may, within three years of the outline approval, make an application for the outstanding reserved matters, i.e. the information excluded from the initial outline planning application. This will typically include information about the layout, access, scale and appearance of the development. ``` • Advertisement consent This form should be used for proposals to display an advertisement or sign which requires planning permission. The term advertisement covers a very wide range of advertisements and signs including: – Posters and notices – Placards and boards – Fascia signs and projecting signs – Pole signs and canopy signs – Models and devices – Advance signs and directional signs ```
34
What is a design and access statement ?
A design and access (DAS) statement is a short report accompanying and supporting a planning application. They provide a framework for applicants to explain how a proposed development is a suitable response to the site and its setting and demonstrate that it can be adequately accessed by prospective users.
35
When do the CDM Regulations apply?
The CDM regulations apply to every construction project
36
Give me some examples of the key duty holders of the CDM regulations.
* Client * Principal designer * Principal contractor
37
Under CDM, is a Principal Designer required on all projects?
Yes, a principle designer must be appointed on all construction projects involving more than one contractor
38
When is a project notifiable under CDM?
A construction project is notifiable if: It's scheduled to last longer than 30 working days AND has more than 20 workers working simultaneously; OR. The project exceeds 500 person days
39
What is dilapidations?
Breach of the lease obligations
40
Can loss of Rent & VAT be claimed in schedule of dilaps?
Loss of Rent can be, but needs to be allowed for in lease (usually require input from solicitor and managing agent on this). A sum equal to the amount of VAT is claimed if landlord is not VAT registered and cannot claim back VAT. IF they are VAT registered, they can claim VAT from HRMC and no loss suffered.
41
What are dilapidations ?
Dilapidations refers to breaches of lease obligations, either express or implied and usually relates to repair, redecorate, reinstate, breaches of statute and other associated costs. A claim is an alleged breach of contract and as such is actionable by law.
42
What documents are required prior to a dilaps survey?
* Lease, plans * Licenses to alter * Schedules of condition
43
What lease clauses would you consider when consider a tenants dilaps liability?
* Repair * Redecoration * Reinstate * Yield up * Surveyors fees * Statutory obligations
44
Can fees be claimed ?
Generally, fee’s incurred by the landlord for preparing and serving a schedule cannot be recovered unless there is an express provision in the lease or pursuant to statutory provisions (section 146 of the Law of Property Act 1925).
45
Describe a schedule of dilaps
A column for the clause number, description of breach, remedy, cost, tenant comments and their surveyors cost estimate.
46
What are the three main types of dilaps schedules?
* Interim * Terminal * Final
47
What remedy can be sought from claims at the end of the term ?
Damages
48
What remedies can be sought from claims during the term ?
Decree of specific implement, Damages, irritancy, entry to carry out repairs with a claim for costs
49
How is the assessment of loss calculated ?
A claim is based on the assessment of the cost of repairs.
50
How can you go about limiting a dilaps claim ?
Review the lease covenants, assess costs for claims, review what is actually being claimed
51
What type of clause is often exercised during interim schedules ?
The right to enter the property without consent of the tenant to undertake works that should have been carried out and then charge the tenant. This is referred to Jervis V Harris 1996 clause. Extreme caution is required when using these clauses as incorrect application can lead to counter-claims from the tenant for trespass.
52
What is a break clause ?
Allows the and or tenant to determine the lease before the contractual term ends
53
What was the purpose of the PLA protocol/CPR dilaps protocol ?
Intended to improve the pre-action communication between landlord and tenant by establishing a timetable for the exchange of information relevant to the dilapidations dispute and by setting standards for the content of claims and correspondence and the conduct of pre-action negotiations. The overall aim was to reduce the number of claims going to court.
54
Do surveyors have to follow the protocol ?
No, it is just guidance but it is likely that if a dispute were to arise and reach courts without protocol being followed, surveyors may risk having to pay both sides legal costs
55
What is the process outlined in the (Dilapidations) Protocol?
* Service of schedule with a claim within 56 days from lease ending. * Service of tenants response within 56 days of receiving claim * Negotiations * Stocktake * Formal diminution of value and quantification of claim prior to court proceedings * Court proceedings.
56
Are all dilaps claims subject to VAT ?
No. Commercial buildings are normally VAT exempt unless the landlord pays VAT. The landlord can elect to pay VAT. Where a building is VAT elected, then VAT is not payable on the claim. Where VAT is not elected, no VAT can be claimed.
57
If a client asks you to act on their behalf if a dilaps situation, what questions would you ask ?
* Are you the landlord or tenant? Who is the landlord/tenant? * What stage is the lease at? * Is it Full Repair and Insure or an Internal Repair only lease? * Are there any plans? Have you made any alterations? Are there any previous surveys?
58
What does without prejudice mean?
This phrase is often found at the head of legal correspondence, where its intention is to render the contents inadmissible as evidence. This is a form of privilege enabling genuine and open dialogue between parties attempting to settle disputes without the process then being disclosed in evidence, in the event that those discussions fail to resolve the dispute.
59
What is the difference between express and implied obligations ?
* Express – terms that are specifically agreed within the contract * Implied – terms that are not mentioned but apply by way of statute or the courts.
60
Who are the duty holders under the Control of Asbestos Regulations ?
The duty holder is the owner/ managing agent/ asset manager of the domestic premises Leaseholder depends on the extent of maintenance and repair obligations.
61
What duties does the gas safety (installation and use) regulations 1998 as amended place on landlords ?
Duty to maintain all owned pipework, appliances and flues which are available for the tenants use(this is passed onto the letting agent if specific in the letting contract)
62
How often must a gas safety check be carried out ?
Annually
63
Who should carry out a gas safety certificate ?
Gas safe registered engineer
64
Who is the accreding body for electrical installations?
NIC/EIC, Alexa
65
Who is the accreding body for Asbestos related works ?
ARCA
66
Who is the accreding body for windows installation ?
FENSA
67
Who is the accreding body for oil installations ?
OFTEC
68
Who is the accreding body for wood burning stove applications ?
HETAS
69
Who is the accreding body for gas boiler installations ?
Gas Safe
70
Explain the Building Safety Bill 2021?
Recommendations in Dame Judith Hackitt’s 2018 Building a Safer Future report Building Safety Regulator which will sit within the Health and Safety Executive. including taking over the building control regime for higher-risk buildings, enforcing sanctions for non-compliance, improving the competence of those working on those buildings and overseeing the safety of those buildings in occupation.
71
What is The Control of Asbestos at Work Regulations 2012
The act sets about guidance to monitor, protect and remove asbestos DUTY TO MANAGE - updated yearly
72
Housing Grants, Construction and Regeneration Act 1996 ?
It is intended to ensure that payments are made promptly throughout the supply chain and that disputes are resolved swiftly. Provisions of the act include: The right to be paid in interim, periodic or stage payments.
73
What is a British Standards ?
British Standard refers to the specification of recommended procedure, quality of output, terminology and other details, in a particular field making a product, managing a process, delivering a service or supplying materials.
74
What is the Fire Safety Bill 2021 ?
The Fire Safety Bill was introduced to amend the Regulatory Reform (Fire Safety) Order 2005. It aims to make it clearer where responsibility for fire safety lies in buildings containing more than one home.
75
What is a licence to alter ?
As the Licence for Alterations is governed by law, this landlord's consent is not to be unreasonably withheld from the tenant and should be provided in a written format. This is called a Licence To Alter (or Licence For Alterations) and it protects both the landlord and the tenant's rights under the terms of the lease.
76
What would an example of a normal liabilities within a lease be ?
Decoration every 3 years and within the last 6 months of the term.
77
What is a design and access statement ?
Design and access statements are prepared as part of the documentation to support a planning application. They explain the design principles and concepts that have been applied to particular aspects of the proposed development. Design and access statements may include plans, elevations and other illustrations, photographs and for large or complex schemes a model of the proposed development. Design and access statements should explain amount (how much development is proposed). For residential development, this the number of proposed units and for all other development, the proposed floor space for each proposed use and layout.
78
What information was included in the Design & Access statement?
Design and access statements are prepared as part of the documentation to support a planning application. They explain the design principles and concepts that have been applied to particular aspects of the proposed development. Design and access statements may include plans, elevations and other illustrations, photographs and for large or complex schemes a model of the proposed development. Design and access statements should explain Amount (how much development is proposed). For residential development, this the number of proposed units and for all other development, the proposed floor space for each proposed use and layout.
79
Briefly explain the process used by the local planning authority, when considering this application.
Consider the proposed application into relation to the guidance at national and local level, NPPF and a local plan
80
How are the fees for the submission calculated ?
Dependant on the application type
81
What is a heritage impact statement?
A Heritage Statement sometimes referred to as a Heritage Impact Assessment (HIA) is a document that outlines the historic or archaeological significance of a building or landscape within its wider setting. It includes an outline of any proposed works, an assessment of their impact on the building or landscape and a mitigation strategy.
82
What is required for a Listed Building Consent application?
* A heritage impact assessment - as above * Design and Access Statement—A document containing both a design statement and an additional written statement about how issues relating to access to the development for disabled people have been dealt with. * Ecological Appraisal — A report evaluating the importance of any ecological features present within the specified site. * Archaeological Survey — A report detailing any areas of archaeological interest within the locality of or within the site itself. The report should include details of any measures proposed to safeguard such sites from being negatively impacted by the proposals. * Plans, elevations, sections, detail drawings * Specifications of materials and repairs * Specialist reports - structural, drainage, materials analysis
83
What is a Certificate of Construction and what types are there>
It is issued by an approved certifier qualified to assess compliance with the building standards, and it certifies compliance. There is a plumbing, heating and drainage certificate as well as an electrical installations certificate to BS 7671. There are various others for example for fire alarms, the design, installation and commission, emergency lighting, etc.
84
What is a Certificate of Construction and what types are there>
It is issued by an approved certifier qualified to assess compliance with the building standards, and it certifies compliance. There is a plumbing, heating and drainage certificate as well as an electrical installations certificate to BS 7671. There are various others for example for fire alarms, the design, installation and commission, emergency lighting, etc.

BS_APC - 2 (26 decks)

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