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Planning issues in Property TransactionsProperty Search North EastVictoria Joy – Consultant, Landmark
What will we be looking at during the session?
During the session we will look at:
why planning issues are important
planning information in property transactions and Landmark’s planning reports
an update on recent developments in legislation and town and village green applications
Planning Issues for the Buyer
Short and long term plans for the property:
• use• structural issues• breaches & enforcement• implementation of planning
permissions• development
Obtaining Information
Title investigation
Physical inspection & survey
Searches
Pre contract enquiries
Why do you need to think about this?
Your client may be considering development and may need to know about relevant planning policy information
Your client may be concerned about development close to the property
There may be proposals for development that would affect your client’s use and enjoyment of the property as well as the value of the property
Your client may be concerned about rights of way on or close to the property
Failure to advise your client and provide suitable information could result in complaints or claims
Planning Information
Permitted Development
The Town & Country Planning (General Permitted Development) Order 1995 Grants automatic planning permission for various classes of developmentE.g. from 1 October 2008 extensions and additions to a home will be considered to be permitted development - subject to certain limits and conditions relating mainly to size and heightBuilding Regulations compliance still necessary
Material Change of Use & Use Classes
Planning permission is generally required for a material change of use
Town and Country Planning (Use Classes) Order 1987 sets out different use classes
Permitted development rights can allow certain changes between use classes e.g.
• hot food takeaway to shop (A5→A1)
• general industrial to business (B2→B1)
Planning Information Revealed by the Local Search
Searches (LLC1 and Con29) may reveal several types of planning information for a property which are available for public inspection
These include:
• planning permissions
• determined and pending planning applications
• section 106 agreements
• enforcement notices
• listed building and conservation areas
• compulsory purchase orders
• tree preservation orders
• Article 4 directions In the majority of cases the information relates to searched property only
Section 106 Agreements
Entered into by a person with an interest in land and the local authority
Set out planning obligations e.g.
• restrict development or use of land
• require operations/activities to be carried in, on, under or over land
• require land to be used in a particular way
• require payment of financial sums to be made to the local authority
S106 agreement can be:
• agreement between local authority and developer
• unilateral undertaking by the developer
Planning Enforcement Notices
Examples of notices:
Planning Contravention Notice
Breach of Condition Notice
Enforcement Notice
Stop Notice
Listed Buildings
A building of special architectural or historic interest: Grade I, II or III
English Heritage responsible for designation
Consent required for:
• demolition
• alteration/extension that would affect the character of the building
• note: proposed changes under Enterprise & Regulatory Reform Bill
Conservation Areas
Areas of special architectural or historic interest – the character or appearance of which it is desirable to preserve/enhance.
Consent required to demolish an unlisted building in a conservation area
Compulsory Purchase Orders
A government or local authority order to purchase land or buildings for a public interest purpose e.g. construction of a major road
Tree Preservation Orders
Tree Preservation Orders:
• used to secure preservation of single trees or groups of trees which are considered to have amenity value
• consent required for works to the tree e.g. lopping/ felling
Article 4 Directions
Issued by local planning authorities
Remove some or all permitted development rights e.g. in relation to buildings in conservation areas
Planning update: The Localism Act 2011
Localism Act 2011: Aims of Planning Reforms
Make planning system:
• clearer• more democratic• more effective
Most planning proposals in force from April 2012
National Planning Policy Framework
National Planning Policy Framework – NPPFUpdate: April 2012
The decision of whether development is appropriate for a site will be based on the principle of ‘sustainable development’.
This is defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. In planning terms, it means planning for prosperity, people and places.’
At the heart of the new system is a presumption in favour of sustainable development.
Decisions regarding development will be based on a Local Plan (LP) document. This will be drawn up by individual Local Authorities and will aim to set out strategic priorities such as housing, business, minerals and national defence.
Each LP will be based on the principle of sustainable growth and will be objectively reviewed by an independent third party.
National Planning Policy Framework – NPPFUpdate: April 2012 (2) Local Planning Authorities will look to approve any development that fits the LP,
or where the plan is ‘absent, silent, indeterminate or the relevant policy out of date’.
These policies should apply unless the adverse impacts of allowing development significantly outweigh the benefits.
The National Planning Policy Framework will replace the current Planning Policy Statements (of which there are around 40).
Those most relevant to housing development include:
PPS23: Planning and Pollution Control
PPS24: Development and Flood Risk
PPS3: Housing
How will the aims of the Act be achieved?Regional Strategies
Abolition of regional spatial strategies introduced by Planning & Compulsory Purchase Act 2004
Limited community involvement in regional strategies
How will these aims be achieved?Duty for local authorities/public bodies to work together
Act contains a duty for local authorities to work together on planning issues
Could relate to:
• flood risk• public transport• major retail developments
How will these aims be achieved?Community Planning
Act introduces rights for communities to develop a “neighbourhood plan”
Neighbourhood plan will be developed by residents, employees and business through parish councils or a neighbourhood forum
If appropriate, neighbourhood plan will be voted on in a local referendum and brought into force by the local authority if approved
How will these aims be achieved?Community Planning
Community organisations permitted to put forward development proposals
No need for planning application
Referendum to show support
How will these aims be achieved?Requirement to Consult
Developers required to consult communities before submitting planning applications for some developments
Communities able to comment at early stage of proposals
How will these aims be achieved?Community Infrastructure Levy
Local authorities can require developers to pay a levy on development of homes, businesses or shops
Money goes to new infrastructure projects such as roads and schools
Act will allow:
• more power for local authorities to determine the rates payable
• some of the money raised to be spent on non infrastructure issues
• some of the money raised will be required to be used specifically in the neighbourhood affected by the development
How will these aims be achieved?Nationally significant infrastructure projects
Abolition of Infrastructure Planning Commission
Decisions will revert to being taken by government ministers
National policy statements to be voted on by parliament
BUT……..this could all changeGrowth & Infrastructure Bill 2012
Decisions on “large scale commercial and business projects” to go through in not more than 12 months
The Secretary of State may be given powers to make decisions in relation to development of retail & business parks – especially in areas where there has been a “history” of applications being opposed/ rejected
How does this fit in with Localism?
Solar Panels
Planning permission required?
Conservation area/Article 4 Direction?
Building Regulations?
Restrictive covenants?
Lender issues
• 25 year leases • Registration of title• LTA 1954 protected?
Town & Village Green Applications
Commons Act 2006
Any person can apply to their local authority to register land as a town or village green if:
“a significant number of the inhabitants of any neighbourhood within a locality, have indulged as of right in lawful sports or pastimes on the land for the period of at least 20 years.”
The use of the land must be “as of right”
Without force
Without secrecy
Without permission
When are village green applications often used?
May be used to block or delay applications for development:
• increases costs for developer
• significant time delays• application can be made
after planning permission has been granted
R (Lewis) -v- Redcar and Cleveland Borough Council (2010)
Local residents used golf course for recreational purposes
Court of Appeal found that the use was not “as of right”
Residents had shown “overwhelming deference” to the use of the land as a golf course
Residents had not interfered with playing of golf on the land
R (Lewis) -v- Redcar and Cleveland Borough Council (2010): Supreme Court Decision
Deference to dominant use does not mean that the residents’ use was not “as of right”
Provided use is without force, secrecy or permission, deference to the dominant use of the land does not matter
Supreme Court found that registration of the land as a village green would not affect its ongoing use as a golf course
The implications of Redcar
Landowner cannot rely on the fact that users of the land defer to dominant use as a defence to an application for registration
Landowner needs to either:
• prevent entry: use signage or fencing• permit entry using signs
Note: Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust -v- Oxfordshire County Council:
• “No right of way” on signage does not prevent recreational use “as of right”
If users have 20 years’ use as of right, signs allowing entry do not prevent use being as of right
DEFRA proposals for reform: 2011 Consultation
“Sifting” by local authority
Declaration by landowner
Apply a “character” test to the site
Prevent registration of land subject to planning permission or a planning application – provisions now included in the new Growth & Infrastructure Bill
Introduce fees for applications
Recent Government Announcementon Change in Use
Planning permission will no longer be needed for some conversions
Eric Pickles announced on 24 January 2012 that:
• new permitted development rights will allow office space to be converted into new homes (B1(a) to C3)
• 3 year “sunset clause” and review at that time• local authorities can seek an exemption if substantial adverse economic
consequences, but only allowed in exceptional circumstances• also new PDRs for the conversion of agricultural buildings to other
business uses (inc. shops, restaurants, small hotels and leisure facilities and offices), subject to a size restriction
• and town centre buildings will be able to convert for up to 2 years to uses including shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1)
Landmark’s Planning Reports
Summary
Buyers/developers need an awareness of planning issues affecting the property and surrounding area
Localism Act 2011 could result in significant changes to local planning policies and new planning applications
Town/village green applications may have been submitted to block planning applications
Town/village green applications demonstrate the need to be aware of land use designations and rights of way
Landmark’s planning reports can provide vital information on these issues
Your client may not want to be near….
What the local search will not reveal….
Plansearch Plus & Sitecheck Planning: Key Features
aerial photo
planning policy information
commercial & residential Applications
planning decisions on larger applications
local facilities
house prices
phone masts
crime rates (relevant to insurance)
educational information
Datasets used in Plansearch Plus & Sitecheck Planning
Crime: Home Office
Development plans: Devplan
Educational establishments: DfES, Welsh Assembly, Scottish Executive
Local Plan features: Local Authorities
Local Development Plans: Local Authorities
Mobile phone masts: OFCOM
School performance tables: DfES
Planning applications: Barbour ABI
Points of interest: Point X
Postcode level housing & resident profiles: EuroDirect
Insurance claims ratings: Crawford & Co
Rights of way: Ordnance Survey
Questions?
Tools to assistProduct MatricesFlow chart
Outcomes
During the session we have looked at:
why planning issues are important
planning information in property transactions and Landmark’s planning reports
an update on recent developments in legislation and town and village green applications
Recommended