Unit 2 Due diligence Flashcards
Planning - development definition
Permission is required for carrying out any development of land.
s55 definition of development = carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
Planning - Matters that do not constitute ‘Development’
Carrying out of the maintenance, improvement or other alteration of any building or works which affect only the interior of a building, or do not materially affect the external appearance of a building.
Change of use within same class is not development.
Classes in England:
B2 – general industrial
B3 – storage and distribution
C – residential uses: hotels (C1), dwelling houses (C3), houses in multiple occupation (C4)
E – commercial, business and service
F – local community and learning: learning and non- residential institutions (F1) and local community (including shops selling essential goods in premises not exceeding 280m2 with no other such facility within 1,000m) (F2).
E(a) – retail sale of goods, other than hot food
E(b) – sale of food and drink for consumption on the premises
E(c) – financial and professional services
E(g) – uses which can be carried out in a residential area without detriment to its amenity, including offices to carry out any operational or administrative functions and research and development.
Also some uses classified as ‘sui generis’ = the only one of its kind. Have adverse effect on locality e.g. cinemas, bingo halls, pubs etc.
Planning - effect of planning permission
Planning permission continues to exist for the benefit of the land and of all persons for the time being interested in it (unless otherwise specified in the planning permission itself).
Will usually state that it has to be implemented within a certain time and will lapse if not implemented in that time.
In England, this is usually within three years of the date of the permission; in Wales this is usually within five years.
Local planning authority can serve completion notice if it thinks that completion will not take place in a reasonable time but rare.
Planning - Matters that do not require express planning permission
In some cases, it is automatically granted.
Permitted development rights are set out in the Town and Country Planning (General Permitted Development) Order 2015.
E.g. curtilage of a dwelling house (such as extensions below a certain size) and minor operations (such as painting the exterior of a building or installing a CCTV camera).
Possible for an article 4 direction to be issued to negate a concession by secretary of state or local planning authority under GDPO 2015.
In cases of doubt it is possible to apply for a Certificate of Lawfulness of Proposed Use or Development under s 192 of the TCPO 1990.
Planning - Enforcement: time limits and the range of the LPA’s enforcement powers (enforcement notice and stop notice)
To find out if there has been a breach, an LPA can exercise a right of entry to the property or serve a planning contravention notice requiring info.
- Enforcement notice
- Must be served on the owner, occupier and any other person having an interest in the land, such as a mortgagee, and will become effective 28 days after service.
- Must specify the alleged breach and the steps to be taken/discontinued.
- Any person interested in the land to appeal.
- In Wales can serve enforcement warning notice if reasonable prospect planning permission would be granted if app made.
- Stop notice
- To bring activities in breach of planning control to an end before the enforcement notice takes effect.
- EN must be served first.
- LPA can serve a temporary stop notice, effective for 28 days only, which gives time for further investigation. In extreme cases, the LPA can apply to court for an injunction.
Planning - Enforcement: time limits and the range of the LPA’s enforcement powers (Breach of condition notice and Injunction)
- Breach of condition notice
- Similar to an enforcement notice but can only be served where the breach of planning control is a breach of a condition attached to a planning permission.
- No right of appeal against the service of a breach of condition notice.
- Injunction
- LPA can apply to court for an injunction to restrain an actual or apprehended breach of planning control.
- Discretionary remedy
- Must show that an injunction is expedient and necessary and that the remedy is appropriate in the circumstances.
Planning - Enforcement: time limits and the range of the LPA’s enforcement powers - time limits
Enforcement action must be taken within:
- 4 years for operational development carried out without planning permission
- 4 years for change of use to a single dwelling house
- 10 years from the date of the breach for all other breaches (such as any other material change of use or breach of a planning condition).
Failure to comply with notices is fine.
Building regulation control
Building regulations are concerned with the health and safety aspects of buildings being constructed or altered and they control the materials and construction methods used.
Have to apply for it.
Building control officer will inspect.
LA issue certificate of compliance.
Some work can be self certified by regulated professionals e.g. windows, plumbing.
LA can prosecute for breach.
Proceedings must be brought within 2 years of work completion.
Can also issue an enforcement notice within one year of the work, requiring the work to be altered or removed.
Can take out injunctions, which are not time limited, if the work is unsafe.
Ask seller about works carried out in pre contract enquiries and so searches.
Listed buildings
If listed probably require listed building consent to demolish, alter or extend the building in addition to planning permission. Higher grade = harder to obtain consent.
There are a number of classes of permitted development under the GPDO that do not apply to listed buildings.
3 grades of listings - Grade 1, Grade 2* and Grade 2
Dealt with by Welsh govt and Department for Culture, Media and Sport with the assistance of Historic England.
Conservation areas
LPAs are obliged to designate as conservation areas any parts of their own area that are of special architectural or historic interest, the character and appearance of which it is desirable to preserve or enhance.
More protection than listed buildings.
Need planning permission from LPA.
Any work planned to a tree in a conservation area must be notified to the LPA 6 weeks in advance.
Pre-contract searches and enquiries - caveat emptor
Caveat emptor = let the buyer be aware
Pre-contract searches and enquiries - who makes them
Buyers solicitors before exchange of contracts.
Failure to make the correct searches and enquiries can give rise to a claim of negligence.
Allows buyer to make informed decision. Lender also cares about information revealed.
In commercial transactions lender may be separately represented still might want report from buyers sol.
Pre-contract searches and enquiries - range and type (every property)
(a) Survey and personal inspection
Reveals structural state, physical location, boundary features, how property accessed.
b) The local search
3 different forms - LLC1, CON29R and CON29O.
Reveals planning permission, contaminated land, liability for road repair etc.
LLC1 will reveal if tree preservation orders.
CON290:
8 - location of pipelines
18 - environmental and pollution notices
22 - common land and town and village greens
(c) Water and drainage search
CON29DW
Whether the Property is connected to mains water, and foul and surface water drainage.
(d) Pre- contract enquiries of the seller
(e) Environmental searches
Different types. Most common ‘desktop search’. If reveal risk of contamination may get physical survey.
If contaminated and original polluter cannot be found, owner responsible for remediation.
(f) Flood search
Most firms will recommend a flood search on every property transaction.
Pre-contract searches and enquiries - range and type (for particular property)
(a) Chancel repairs search
Can be liable to pay costs to repairing church. Only if says in deeds/caution or last transfer for value registered before 13 Oct 2013.
(b) Mining searches
CON29M form.
(c) Canal & River Trust search
If the property is adjacent to a river or a canal can be liable for maintenance.
(d) Commons search
On Greenfield sites or adjoining open space may be affected by rights of pasture etc.
(e) Railways
Obligations to maintain boundary fences.
(f) Highways
Letter to the highways authority.
Verges and pavements not covered on local search.
See if connected to public roads or need easement to access.
(g) Unregistered land searches
SIM and land charges search.
(h) Company search
- Bankruptcy/ insolvency search
If acting for lender search against borrower.
Individuals - K16 land charges.
Company - company search.
Pre-contract searches and enquiries - Online search providers
National Land Information Service (NLIS).
Developed by govt.
To use the service, a firm must register with one of the ‘channel’ providers.
Channels compete and present info differently.
The whole process may take only a matter of hours, or even minutes, to complete. Some replies still come by post.
It is possible to order searches without using a licensed NLIS channel via other providers.
