TOWN AND COUNTRY PLANNING

Question 1

3

what is planning restriction

Answer 1

1. Planning restricts development of land to ensure that uncon-trolled building does not take place. Planning law is imposed by local authorities. Planning affects conveyancing because
   it imposes requirements on building on, and alteration of, property.
2. Apart from statutory controls over the development of land, a buyer also needs to be aware that land may be subject to private planning restrictions. These may take the form of restrictive covenants which might prohibit or limit develop-ment (for example, a covenant not to build a further dwelling on land or not to build on the land at all).
3. On the exam, do not confuse planning issues and title issues. The appropriate planning permission may beobtained 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 2

5

TOWN AND COUNTRYPLANNING ACT 1990

Answer 2

1. The Town and Country Planning Act 1990 (‘T&CPA 1990’) gov-erns the development of land in England and Wales.
2. Under T&CPA 1990, planning permission is required for the carrying out of any development of land.
3. Development is defined in T&CPA 1990 as:
   (i) Carrying out** building, engineering, mining,** or other oper-ations in, on, over, or under land; or
   (ii) Making any** material change of use **of any buildings or other land.
4. Building operations include** structural changes or additions** to a building or building something on a piece of land.
5. Material change of use is interpreted broadly and covers the conversion of one house to two fats or a house to a shop and a flat.

Question 3

Planning Permission Can Be Deemed or
Express

T&CPA 1990

Answer 3

If a property owner wants to carry out **‘development’ **as defined in the Act, they must obtain planning permission either by deemed permission or by express permission as the result of a formal application to the local authority.

Question 4

3

Deemed Permission
Town & Country Planning (General Permitted Development) Order 1995

Answer 4

1. The Town & Country Planning (General Permitted Devel-opment) Order 1995 allows certain types of development (‘permitted development’) without the need for express consent because permission is deemed to be granted for the specifed works. Examples of the types of de-velopment covered by permitted development include small home extensions within certain size limits, porches, fences, or conservatories.
2. The local authority can exclude locations, such as a conservation area, from the permitted development rights by passing an Article 4 Direction.
3. 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 (for example, erecting a porch, installing new windows), they will need to make an application for express planning permission.

Question 5

Express Permission
T&CPA 1990

Answer 5

There are two types of express planning permission:
1. Outline Permission
2. Detailed Permission

Question 6

Outline Permission

Answer 6

1. Outline permission gives 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).
2. 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.
3. Work must start within** two years** from approval of the reserved matters.

Question 7

Detailed Permission

Answer 7

1. Detailed permission is a more complex and costly ap-plication, involving the submission of full plans to the local authority. If approved, detailed permission will allow the development to commence.
2. After detailed permission is issued, the development must commence within three years of the date of the permission. Otherwise, the permission lapses.

Question 8

Enforcement Action
planning permission

Answer 8

If any development lacks planning permission or fails to comply with a planning condition, the local authority can take enforcement action against the owner or occupier of the property/afected land, or against any other interested party

Question 9

Current Owner Liable for Breach

Answer 9

1. Planning problems run with the property, so it is no defence if a buyer buys a property on which planning controls have been breached.
2. The new buyer cannot rely on the fact that it was a previous owner who carried out the work without the
   required permission.
3. Therefore, the buyer’s solicitor must find out** before exchange of contracts** whether all relevant planning requirements have been complied with

Question 10

Enforcement Notices

Answer 10

If the local authority decides to take enforcement action for a planning breach, it must serve an enforcement notice. The enforcement notice 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.

Question 11

Enforcement Time Limits

Answer 11

1. An enforcement notice regarding unauthorised building works must be served within** four years **of the breach.
2. En-forcement notices for all** other breaches**, such as a material change of use, must be served within 10 years of the breach. If, for example, 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 frst breach.

Question 12

LISTED BUILDINGS

Answer 12

1. The local search (and PIF) may reveal that the property is a listed building. This means that the building is one which has been placed on a statutory list and is likely to be an old building of special architectural interest.
2. A listed building cannot be demolished, extended, or altered without a listed building consent form from the local authority.
3. This consent is required** in addition to planning permission **and changes to the property are much more restricted.

Question 13

3

Determination of Listed Status

Answer 13

1.If listed, the building will appear on a list maintained by an organisation called Historic England. The listing will cover the building and everything within its** ‘curtilage’ **(usually mean-ing the garden and immediate area around the buildings).
2. Buildings are listed according to their importance: Grade I includes buildings of exceptional interest; Grade II are import-ant buildings of more than special interest. The bulk of listed buildings are Grade II.
3. In an exam question, watch for any suggestion that a garage or outbuilding in the garden of a listed building has been altered or developed. 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 14

3

No Time Limit for Enforcement of listed building

Answer 14

1. There is no time limit for enforcement action by a local authori-ty regarding breaches of listed building status.
2. It can be served on the current owner of a building irrespective of whether they, or a previous owner, carried out the unauthorised work.
3. Failure to comply with an enforcement notice is also a criminal offence. Thus, dealing with a listed building is risky.

Question 15

2

BUILDING REGULATIONS

Answer 15

1. Building regulations are a series of **statutory standards **in place to ensure that new buildings and constructions are built according to certain standards. Note that building regulations are linked to building work but are separate from planning permissions.
2. 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 16

2

Compliance with Building Regulations and Planning Laws Required

Answer 16

1. Anyone carrying out development works must comply with building regulations as well as planning laws. Note that work which does not require planning permission will still require compliance with building regulations.
2. A building control officer will inspect the work being carried out at various stages and, once satisfed with the completed work, will issue a building regulations completion certifcate (sometimes known as a ‘final certifcate’).

Question 17

What Work Requires Compliance with Building
Regulations?

Answer 17

The list of works covered by building regulations is much longer than works that require planning permission. In addition to actual building work at a property (whether a 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 18

Building Control Enforcement Time Limit

Answer 18

The local authority can take enforcement action against a
person who does not comply with building regulations within **12 months **from the date of the breach.

Question 19

Injunction May Be Issued Beyond 12-Month Limit
Building Regulation

Answer 19

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 20

Indemnity Insurance
planning law building Regulation

Answer 20

If there has been a breach of planning laws or building regulations and the relevant enforcement period has passed, a buyer might ask the seller to provide indemnity insurance at their own cost to deal with the possibility of enforcement.

Question 21

USE OF THE PROPERTY

Answer 21

Most leases will specify the permitted use of the property. In the residential context, the use of a flat will often be restricted to use as a dwelling only and business use will not be permitted. A commercial lease will also specify the use to which the property can be put by the tenant.

Question 22

Commercial: Use Classes

Answer 22

1. 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’.
2. The Use Classes are divided into several categories of use, including commercial, business, and service (Class E), learning and non-residential
   institutions (Class F.1), and local community (Class F.2).
3. Generally, planning permission is not needed when the exist-ing and the proposed uses fall within the same Use Class.
   EXAMPLE
   A greengrocer’s shop could be changed to a shoe shop without the need for planning permission as these uses both fall within the same Use Class for shops (A1). However, if building work is associated with the proposed change of use, planning permission may be required for that work.
4. Generally, if it is proposed to change from one Use Class to another, planning permission is needed.
5. Some changes from one Use Class to another are cov-ered by ‘permitted development’ rights (meaning that planning permission is deemed to have been given), such as 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 per-mitted development rights will be removed, and a plan-ning application will be required. Remember also that the local authority can remove permitted development rights by passing an Article 4 Direction.