“Planning issues for conveyancers”

Tim Smith – Berwin Leighton Paisner LLP Chair, Planning & Environmental Law

Committee, The Law Society

Content

• When is planning permission required?

• Discharge of planning requirements

• Enforcement action: what to ask and when to be worried

• Some basics about planning Agreements

When is planning permission required?

Permission for development

• Permission required for “carrying out of any development

on land” (s.57 TCPA 1990)

• “Development” defined as (s.55):

• “carrying out of building, engineering, mining or other

operations” (also known as “operational development”) or

• “making any material change in the use of land or buildings”

Permission not required if …

• Operational development, permission not required for:

– Maintenance improvement or alteration works which:

• Affect only the interior, or

• Do not materially affect the external appearance

• Change of use, permission not required if:

– Use of a building in the curtilage of a dwellinghouse incidental to

use/enjoyment of that dwellinghouse

– Any use within the same Use Class

• Change of use, permission is required for sub-division of single

dwellinghouse to two or more separate dwellings

Permitted development rights

• TCP (General Permitted Development) Order 2015:

– 19 categories of development (“Parts”) for which permission

deemed to be granted

– Each has qualifying criteria and deemed conditions

• Most relevant examples for conveyancers:

– Part 1: development in curtilage of a dwellinghouse

– Part 2: minor operations

– Part 3: changes of use

– Part 4: temporary buildings and uses

PD rights disallowed

• Permitted development rights can be disallowed:

– If qualifying criteria not met (e.g. in a sensitive area)

– ‘Article 4’ direction is in place

• Check the local search

– Rights expressly disallowed by:

• A condition on the planning permission

• An obligation in a planning Agreement

Checklist: need for permission

• Do the activities amount to “development”?

• Are they among the categories of development expressly

catered for in the 1990 Act?

• Are PD rights available in principle?

• Are PD rights nonetheless excluded for these works in

this location?

“But I was told it was okay!”

• Informal advice given by a planning officer:

– Not binding on the LPA

– Concept of estoppel no longer applies

• Definitive confirmation of lawfulness only by procuring a

Lawful Development Certificate:

– Lawfulness of Existing Use or Development (s.191)

– Lawfulness of Proposed Use or Development (s.192)

• NB: beware shelf life for the latter

– Either one can be discharged if fraud or material non-

disclosure

Discharge of planning requirements

Planning requirements

• Found primarily in the form of:

– Conditions on the grant of planning permission

– Obligations in a section 106 Agreement

Discharging planning conditions

• Submission can be very informal

– Application by letter will usually suffice

– Several conditions can be discharged at once

– Default determination period 8 weeks

– Confirmation of discharge depends on LPA convention:

– Might be a formal Decision Notice (usual)

– Might just be a letter confirming discharge

– Very unlikely to be ascertained from the local search

Special provisions on discharge

• Pre-commencement (“Grampian”) conditions:

– Restrictions now on imposing them:

– Neighbourhood Planning Act 2017 (in force 19th July)

– No pre-commencement condition without applicant agreement

• Deemed discharge of conditions:

– TCP (Development Management Procedure) Order 2015, art 29

– Deemed discharge notice can be sent from 6 weeks after application.

Must give 14+ days for decision

– If no decision by then, deemed discharged

– Some exceptions, e.g. flood risk, contaminated land, environmental

Section 106 obligations

– Even less formality likely than a planning condition

– Procedure/form set by the Agreement itself

– Almost certain to be by letter/email

– No formal Decision Notice, likely to be correspondence

– Evidencing discharge:

• Most LPAs will entertain a request for confirmation

• NB: some require fees to be paid

Enforcement action

Some of the basics

• Breach of planning control of itself is not an offence

• But it is an offence to:

– Breach listed building control, or

– Fail to comply with confirmed enforcement notice

– NB: Proceeds of Crime Act (and money laundering)

• Most enforcement action capable of appeal on the merits

– Appealing suspends effect pending determination

– … unless interim relief sought by LPA (rare)

Investigating possible breaches

• Planning Contravention Notice (s171C)

– Can serve on:

– Any owner/occupier or anyone with a legal interest

– Anyone carrying out activities on the land

– Can seek information about the activities, dates etc.

– Offence to:

– Fail to respond

– Knowingly/recklessly make false or misleading statements

– LPA not obliged to register as a land charge

Time limits

• Enforcement action discretionary – test of “expediency”

• Limitation period depends on nature of the breach:

• Operational development: 4 years from substantial

completion

• Material change of use: 10 years starting with date of breach

– But change to use as a single dwelling: 4 years

– NB: must be continuous/uninterrupted otherwise restart clock

• Breach of condition: 10 years from the breach

Concealed breaches

• Supreme Court in Welwyn & Hatfield Council [2010]

• Localism Act 2011:

– Added s171BA to TCPA 1990

– Applies where appears to have been concealment

– Can apply to Magistrates Court for Order extending period

– In effect, period of concealment is discounted

Practical points

• Enforceability transfers with ownership, criminal liability does not

• Taking a view on immunity from enforcement action:

• Breaches either once-and-for-all or continuous and uninterrupted

• If prepared to take a view, ensure you retain access to those able to

give evidence of historic breaches

• Making the seller take a view:

• Contract conditional on procuring a Lawful Development Certificate

• Beware implications of concealed breaches:

• “Please rely on the results of your searches”

• “We have not been served with notice of any breach”

Interpreting Planning Agreements

Types of Agreement

• Typical Planning Agreements include:

– Section 106 TCPA (planning), Agreement or Undertaking

– Section 38 HA (adoption of highways)

– Section 278 HA (“alterations to highways”)

– Section 104 WIA (sewer adoption)

– Section 185 WIA (sewer diversion)

• Various other enabling powers common

Section 106 – parties

• Parties to a section 106 Agreement:

– Local planning authority

– Developer

– Landowners (if different from the above)

– Pre-existing mortgagees

Section 106 - purposes

• Purposes (s106(1)):

– Restrict use or development of land

– Require operations to be carried out on land

– Require land to be used in a particular way

– Require payment of sums to local planning authority

• Should not be used:

– For positive obligation to transfer land

– For positive obligation to pay money to a third party

Section 106 – enforcement (1)

• Enforceable as a contract (undertakings too)

• Enhanced enforcement powers:

– Covenants run with the land, bind successors (s106(3))

– May allow for release after parted with interests (s106(4))

– Breach of a restriction, injunction available (s106(5))

– Positive obligations breached (s106(6)):

• power of entry to carry out works in default

• power to recover cost as an ordinary debt

– Power take charge over land for recovery of monies due

Section 106 – enforcement (2)

• Registrable as local land charge

• Evidence of discharge – no statutory requirements

• Limitation for breach: 12 years

• Modification and discharge:

– By deed only (s106A)

– If agreement of all parties/successors, can do at any time

– Hostile application after 5 years if “no longer serve useful

purpose” (s106A)

• Section 52 TCPA 1971 Agreements

ANY QUESTIONS?