Upload
others
View
3
Download
0
Embed Size (px)
Citation preview
“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
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
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
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”
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