Planning issues for conveyancers. Tim Smith Berwin Leighton Paisner LLP Chair, Planning & Environmental Law Committee, The Law Society

Transcription

1 Planning issues for conveyancers Tim Smith Berwin Leighton Paisner LLP Chair, Planning & Environmental Law Committee, The Law Society

2 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

3 When is planning permission required?

4 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

5 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

6 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

7 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

8 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?

9 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 nondisclosure

10 Discharge of planning requirements

11 Planning requirements Found primarily in the form of: Conditions on the grant of planning permission Obligations in a section 106 Agreement

12 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

13 Special provisions on discharge Pre-commencement ( Grampian ) conditions: Restrictions now on imposing them: Neighbourhood Planning Act 2017 (in force 19 th 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

14 Section 106 obligations Even less formality likely than a planning condition Procedure/form set by the Agreement itself Almost certain to be by letter/ 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

15 Enforcement action

16 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)

17 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

18 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

19 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

20 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

21 Interpreting Planning Agreements

22 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

23 Section 106 parties Parties to a section 106 Agreement: Local planning authority Developer Landowners (if different from the above) Pre-existing mortgagees

24 Section 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

25 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

26 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

27 ANY QUESTIONS?