Planning Permission

Introduction to Planning Permission

The conveyancer has a duty when acting for a lender, in accordance with the CML handbook, to ensure that all necessary planning permissions and building regulations approvals have been obtained in respect of the construction of the property and any changes to it. Even when no lender is involved there is a duty to the purchaser. Enquiries on the subject of planning permission arise again and again in conveyancing transactions and yet it is one of the more mis-understood subjects. In this chapter I will aim to advise when planning permission is required, when it is not, and what remedies are available where the rules have been broken. 

What is Planning Permission?

Quite simply, this is permission from the local authority, which can be either specifically granted or granted by a general development order to develop land. 

Conditional Planning Permission

Planning permission can either be conditional or unconditional. In the local search result, where any planning permissions affecting the property should be revealed, it will say if the permission is conditional. The purpose of a attaching conditions is to ensure that the work is done in a particular way, so that they may specify that a particular material is used or that the finish must be of a certain colour. They may also limit the hours during which any work can be carried out, particularly if it involves noisy machinery and is in a residential area. 

There will often be a condition to say that the work must commence within 3 years (for outline planning permission (only really applicable to the construction of a new estate)) or 5 years (for full planning permission) of the permission being granted. They may occasionally limit the future use of certain parts of the property, for example the conversion of a garage to a bedroom would not normally require permission, unless the original consent for the site (house plus garage) was conditional on the garage remaining as a garage. This would be done to ensure that adequate parking provisions remain in place so as to avoid congestion on the highway fronting the property. Conditions which affect the future use of the property are rare. 

When is planning permission required?

According to the Town and Country Planning Act 1990 planning permission is required for the carrying out of any development of land and development is defined as the 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. This description seems fairly all-encompassing however there are exceptions, namely work which is not a change of use and does not affect the external appearance of the building, changes of use within the same class (for example from a newsagents to a grocer's shop) or work to create additional space underground. The conversion of one property to two or more, even if externally the change is not apparent, does constitute a material chainge in the use of the building and requires planning permission. The rationale behind this is that such a change has the potential to increase population and traffic density in the area. Whilst one conversion may not make a significant difference, if every property in an area were to be converted this could have a major impact and the local authority would need to consider whether the public facilities for the area were sufficient to cope with increased demand. Like for like repairs to the exterior of a building do not require planning permission, except if the building is listed (see the section on listed buildings consent later in this chapter). 

General Permitted Development Orders

There are many alterations which are commonly made to property and which, although they do affect the external appearance, are not so significant as to be unsightly or to materially affect the character of the area. For this reason the law allows that each local authority may issue General Permitted Development Orders relating to any alteration where planning permission would normally be required. Such an order grants permission to all properties within the local authority's control to carry our certain works so that a formal application for planning permission need not be made. 

Works covered by General Permitted Development Orders

The local authority has the power to draft the order as it sees fit, but broadly speaking each local authority area will have an order allowing a small extension(including a conservatory) to be added to the property provided that it is within the following limits:-

• It is on the rear of the building and not visible from the public highway It has a volume of less than 70 cubic metres
• The total volume of the extension and any existing extensions is not more than 50% of the volume of the original house
• It is no taller than the original house

It is highly recommended that before any work is carried to the property the proposals are submitted to the local authority for a decision as to whether a formal planning permission application needs to be made, and if planning permission is not required confirmation of this should be obtained in writing so that this can be given to a purchaser in future. 

Conservation Areas

Each local authority has the power to designate areas within their district or borough as conservation areas. They will do this if they believe that the area is of special character and is worth preserving. If a property is in a conservation area then works which would normally be covered by a general permitted development order, such as a conservatory or even putting up a satellite dish will normally need formal planning permission. Before any work is carried out to a property in a conservation area therefore the advice of the local authority should be sought. 

Listed Buildings

If a building is considered to be of special architectural or historical interest it may be designated as a listed building. Absolutely no work, not even repairs, should be carried out to a listed building without obtaining listed buildings consent from the local authority. This is in addition to any planning permission that may be required and is not to be confused with building regulations consent. 

The carrying out of work to a listed building without consent is a criminal offence. Owners of listed buildings may also be legally bound to repair or even restore them to their original state. Careful consideration should be given to these obligations before purchasing a listed building as any necessary repairs are likely to be more costly than to an un-listed property. 

If alterations have been made to a listed building without consent then the only remedy is to obtain retrospective consent (that is to say approval after the works have been completed). Indemnity insurance is not available for lack of listed buildings consent and there is no time limit on the authority's right to take action in respect of a breach. A purchaser should not proceed to exchange contracts on a property where works have been done without consent until a retrospective consent is given. In making a retrospective application of course the seller risks consent being refused and an order to restore the property being issued. 

Enforcement Notices

If the local authority identifies some work that has been carried out without the benefit of planning permission, or incident where a planning condition has been breached, they may serve an enforcement notice, ordering the owner of the property to return it to its original state or to do other such works as the authority feels is necessary. An enforcement notice attaches to the land and not the person who committed the breach, therefore if a notice is revealed written confirmation must be obtained from the local authority that it has been complied with and that no further action will be taken before a purchaser exchanges contracts on a property. 

Work carried out without permission, or if a condition has been breached?

Time Limit for Enforcement Action

If some work has been carried out for which planning permission should have been obtained but was not, or if a condition attached to a planning permission has been breached, then the local authority may issue and enforcement notice (see below) or a stop notice. A stop notice is an order preventing the activity for which planning permission should have been obtained from being carried out, for example the use of part of a house as a shop. The law does not allow the service of a stop notice which prevents the use of any building as a dwellinghouse. In accordance with paragraph 172(4) of the Town and Country Planning Act 1990 however the local authority can only issue an enforcement notice within 4 years of the date the breach first occurred i.e. the date unauthorised building work commenced, the date that the property was first used for something other than its authorised purpose or the date that a condition of a planning permission is breached, therefore once four years have passed there is no risk of enforcement action and no further steps need to be taken to protect the purchaser (or lender). 

In terms of changes of use, it should be pointed out that the four year limit relates only to the change of use of a property into a single private dwellinghouse. If a property is converted into two or more flats, or if a house is used as a business premises, there is no time limit on the local authority's right to take action, although it is generally accepted that if 10 years or more have passed it is unlikely that any action will be taken. 

Retrospective Planning Permission

If the four year enforcement period has not yet expired then the proper way to deal with this is for a retrospective planning application to be made. Even though the work has already been completed the local authority are still obliged to treat the planning application on its merits. Such an application can take several weeks depending on the local authority and whilst the cost will vary from place to place may cost in the region of £200. The authority may of course refuse permission, in which case they would presumably serve an enforcement notice, or they may grant planning permission but impose conditions which require certain alterations (colour, types of material etc) to be made, and because of this a purchaser should not exchange contracts until the planning permission has been granted and any conditions dealt with. 

Indemnity Insurance

As an alternative to obtaining retrospective planning permission, indemnity insurance may instead be obtained. This is an insurance policy where the premium is paid just once and would cover the purchaser and mortgage lender against any financial losses suffered should an enforcement notice be served. Cover is generally only available in the following circumstances:- 

• The work was completed at least 12 months prior to the inception of the indemnity policy
• No application for planning permission has been made, whether refused or pending, and neither buyer or seller are aware of local authority having been put on notice that the works have been carried out
• The property must have been used as a residential dwelling for at least 12 months prior to the inception of the property and must continue to be so used
• No notice, whether formal or informal, of impending enforcement action must have been received by the seller or served to the seller's knowledge

An indemnity policy is usually paid for by the seller, the rationale being that the lack of planning consent represents a defect which the buyer could not have been aware of, and therefore could not have taken into account when deciding how much to offer for the property, when his offer was made. The advantages of insurance over a retrospective planning application are that it is much quicker (it can often be arranged online in minutes), often cheaper and it avoids alerting the local authority to the breach of planning and causing an enforcement notice to be served where the authority might otherwise never have known about the work. 

The disadvantage of course is that the risk of enforcement action still remains and though the purchaser should not suffer financially, dealing with an enforcement notice can be time consuming and stressful, and the outcome can still affect the character of the property, for example if an extension is being used as a bedroom, and there are no spare bedrooms, and the local authority orders it to be removed, the family may have no choice but to move to a larger house. That said, ordering such a structure to be removed would be rather extreme. 

If insurance is obtained it should pointed out to the purchaser that they must not alert the local authority to the existence of the breach in future, nor must they change the use of the property, nor reveal the existence of the policy to anyone other than a future purchaser or the solicitor acting for them in a sale or remortgage, otherwise the policy would be invalidated.