Do you have a standard clause where a seller is selling land with the benefit of planning permission and passes ownership and copyright of the plans to the buyer so the buyer can use the plans and build accordingly?
Can a Case B notice to quit be served on part of the holding provided that the notice to quit refers specifically by way of a plan to the extent of the holding that has planning permission and leaving the remainder of the holding within the tenancy, or does the notice to quit have to relate to the whole of the holding?
Does consent (given by licence) to agree alterations amount to constructive consent to agree a change of use? My client is the landlord of premises currently used as electrical retail and the tenants have asked for consent to re-fit the unit as a food hall. Change of use to a food hall would not be acceptable to my client. My client is concerned that they cannot reasonably refuse the alterations but are concerned that, in giving consent they may damage their ability to refuse consent to assign and change of use.
In relation to planning permission for Crown land, does section 84 of the Planning and Compulsory Purchase Act 2004 prevent an LPA from following up enforcement action by entering the land to rectify a default? If so, how can the Local Authority enforce against the MOD if they cannot enter the land?
When land is being dedicated as highway, is it possible for this to be done with a mortgage on the land? What are the risks to a local authority when land is taken into highway without the mortgage being released?
My client wishes to create an access way over a highway maintained at the public expense as part of a development. This will involve converting the verge/pavement of the highway to allow for vehicles to pass over. Does my client need to enter into any sort of agreement with the owner of the subsoil to allow him to create this access way or does my client simply require the consent of the highway authority? Furthermore, as part of the development my client will need to connect to services within the subsoil. Will an easement be needed with the subsoil owner to allow for this?
We are acting for a client who wishes to purchase a property access to which crosses over a "restricted byway". I have looked at the various materials and think it would be necesary to apply to "stop up" the byway under section 257 of the Town and Country Planning Act 1990. However, have in mind that this may not be necessary as the designation we require won't in fact be extinguished but extended from byway to full highway. I can't seem to find any relevant information as to how we'd go about this, so any pointers as to where I can find further guidance would be appreciated.
My client was served with a breach of planning enforcement notice. He did not comply with it and the LPA issued a summons. The summons was however withdrawn as the LPA did not properly serve it. The enforcement notice remains registered on the local search for the property. We are wondering whether the LPA is now time barred from taking action? The summons was first issued in November 2009. The enforcement notice was dated December 2008.
I am advising on the draft conditions to be attached to a reserved matters approval. The approval will be subject to the standard approved plans condition. However, the client wishes a further condition to require revised plans for layout and dwellings on certain plots. In my view, this contradicts the approval of reserved matters. I don't think this conflicts with the conditions tests but it just doesn't make sense.
My client has submitted a planning application. The red edged submitted with the application includes third party land which forms part of the adopted highway. Because the third party land is adopted, can you confirm that the paper owners of the subsoil of the adopted highway need not be party to the Section 106 Agreement relating to the planning application?
If a lawful development certificate states that a building can be used [for A3] in accordance with the details submitted in the application statement rather than saying, for example, it can be used for A3 between the hours of 12pm - 11pm are the Council able to control its operating hours? i.e. should the Council have been more specific in drafting the wording of the certificate or would the reference to information contained in the application statement be sufficient?
I am looking for materials that there may be (case law/commentary) in terms of the level of detail required to be gone into in a planning officer's report determining an application. I expect an analogous decision would be the level of detail an inspector, appointed by the secretary of state to determine an appeal, would need to go into with regard to the matters considered in arriving at a decision.
If an LPA purports to extend the life of a planning permission as part of a section 73 application, can the applicant rely on the extended lifespan of the planning permission even though section 73(5)(a) of the Town and Country Planning Act 1990 prohibits such extensions?
Do you have any guidance on how (and to what extent) the details of a planning application can be kept confidential? In this case our client has security concerns and wishes to keep details of layout etc. private.
Can a neighbourhood plan be for any time period, or are there set time periods? I cannot find any reference to the length of time the plan runs for in the legislation. I note the designation of a neighbourhood forum lasts for 5 years, I didn't know therefore if the plan could only last as long as the designation?
Does a section 215 notice (TCPA 1990) need to be signed on behalf of the Authority serving the notice? It appears that the client department has served an unsigned section 215 Notice. Is such an unsigned notice valid for registration as a local land charge?
I refer to the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 (SI 1992/2832). Do these Regulations apply to all modifications and discharges or is it just those which the Local Authority has not agreed to?
My client has been asked to transfer a small part of its land to enable the adjoining owner to create a visibility splay for a new access onto its adjoining land (which it is going to develop into a residential dwelling). My client has a hedge and trees close to the visibility splay. To what extent would my client be responsible for maintaining its hedge and trees to ensure visibility, and who would be responsible if the hedge became overgrown while my client was on holiday, and as a result there was an accident due to the impaired visibility? I do not think the new access will become public highway (but this is not certain).
Under the Landlord and Tenant Act 1987 (LTA), if the use of the premises is only partly residential, the internal floor area of the part that is residential must represent 50% or more of the internal floor area of the premises as a whole for the provisions to apply.Our client owns a mixed use building comprising 5 floors, all of equal size. The ground floor is commercial, the first and second floor were offices but have now been cleared and have planning permission for residential flats (4 flats in total) and the third and fourth floor are residential flats (4 flats). Our client wishes to grant a long lease of the first and second floor for development into the four flats. Would the first and second floor be interpreted as residential for the purposes of the calculation? And, if so and therefore the LTA did apply, would our client only have to offer to the four tenants the first and second floor as being that part of the property being disposed of?
Is a planning condition attached to an extant consent which requires works on land outside the control of the applicant enforceable? I am thinking of an example where, say, there is a random strip between the site and a right of way but the consent requires a link to that right of way to be built.
Is an ice cream and milkshake parlour with the provision of ancillary hot and cold drinks for consumption on or off the premises with Class A1 or Class A3? Class A1(a) would suggest that it is possible to rely upon an A1 consent? Class A1: shops (where the sale, display or services are provided principally to visiting members of the public). Class A3: restaurants and cafés (for consumption of food or drink on the premises).
I included a provision in an option agreement for the completion date to be delayed if an application is made for the registration of common land/village greens. However, the seller's lawyer deleted this as the planning application for my clients development will have been granted before the exercise of the option but I do not know why he did this?
I act for the owner of a development site that would like to open up two new accessways along unregistered private roads. We have been unable to identify the ownership of the roads. There are properties that front the roadways, some of which have rights of way registered against them, albeit none identify who made the grant. Would the presumption of ad medium filum extend to the frontagers having sufficient title to sell their land or grant an express right of way over it?
Absent any provision in a section 106 agreement to the contrary, is a mortgagee of the subject property (whether by way of mortgage/legal charge granted by the original covenanting land owner or by a successor in title of that owner) bound by the obligations of a section 106 agreement regardless of whether it is a "mortgagee in possession" or not?
My company is recruiting employees to work in one of its warehouses. We have a house we are renting near to the warehouse and were thinking that we could potentially use this as a base for some of the employees to stay for the first 4-8 weeks of their employment. This would be for the employees that do not already live in the area and would give them the opportunity to settle and then find their own accommodation elsewhere. I have looked at guidance notes on your website and do not think that this arrangement would be categorised as a service occupancy agreement. This is because it is just to make the lives of the employees easier. It's not essential to the performance of the employee's duties nor would it be a requirement in their employment contract for them to live at the house to better perform their duties. We would propose deducting the cost of the house from the employees' wages so they would effectively be paying a rent. My understanding of the situation is that we would be creating an AST. Is this correct? If we were to give them an entitlement to reside at the house for 4 or 8 weeks and an employee refuses to vacate the property after that period, am I right in thinking that we would have to serve a section 21 notice and get a court order but that the court order would not be granted before 6 months have elapsed since they commenced occupation?
The local authority demolished a property pursuant to section 77 of the Building Act 1984 some 10 years ago and the expenditure incurred was registered as a financial charge in the local land charges register in 2002. The local authority has since done nothing to recover this expenditure - presumably on the basis that if it sold the land the proceeds of sale would not be sufficient to recover the debt. Should the local authority now be concerned to sell the property to recover such part of the expenditure as it can to avoid being statute barred under the Limitation Act 1980 from doing so? Is the limitation period 12 years from the accrual of the claim? And if so when might this have started?
My client owns a long lease of premises and wants to enter into a section 106 agreement with a local council. The council is insisting on making the freeholder party to the agreement but the long lease does not require my client to obtain consent from its landlord before entering into agreements like this. I am trying to argue why the freeholder does not have to be party and have explained the nature and terms of the long lease but seemingly it is not enough. I'd like to know please what your view is on whether a long leaseholder is able to enter into a section 106 agreement with a council without the freeholder being party. The obligations will all fall to my client in terms of contributions, so the freeholder is only being required to enter into the deed to record its consent. There will be a huge delay if we have to include the freeholder as a party.
My client is taking a lease of a building currently used for retail purposes. The entire building has plannig permission for non-food retail. The basement of the building is used for storage but my client would like to use it for display and sales. Is there any reason why my client could not use the basement for sales? Would any new planning permission be required?
A client of mine is looking to acquire a building which has the benefit of a temporary planning consent to use the upper parts of the building as ancillary offices/design studio/workshop to the retail use on the ground floor and basement. The previous lawful use of the upper parts was residential. I am confident that at the expiry of the temporary planning consent in 2015, the lawful use of the upper parts will return to residential use without the need for planning consent. However, would planning consent be required if my client wishes to use the upper parts for residential purposes BEFORE the expiry of the temporary planning consent?
I have the following questions regarding adoption of a highway by a local authority: 1. Can a highway be deemed to be adopted by the local authority even if a final adoption certificate was not issued? 2. Does purchase of a parcel of land from a third party which is deemed to be an adopted highway by the local authority override it's adoptive status by the local authority? 3. If the criteria for proving adverse possession is satisfied prior to purchase of a parcel of land from a third party that the local authority deems to be adopted highway, does the adverse possession override it's adoptive status?
Please can I have your thoughts on whether a dormant company can enter into a legal deed - I am working on a section 106 agreement where the developer owns the land in question, but the said company is listed as dormant on Companies House - can that company validly enter into the section 106 agreement, so that it is bound by the obligations therein?
I am trying to find a clause for a sale agreement whereby the seller is offering the purchaser an indemnity against any breach of planning permission conditions up to the current stage of development. Please can you help?
I may be asked to apply for an injunction to stop works being carried out in contravention of a section 106 planning agreement. Does Practical Law explain the procedure and have any precedents of the forms that will need to be filled in?
Following the service of a planning enforcement notice direct action has been taken to ensure compliance with the notice. Section 178 of the Town and Country Planning Act (TCPA) 1990 allows the costs of the direct action to be placed as a charge on the land. As an alternative (or in addition to placing a charge on the land) can the local authority try and recover the costs as a debt in the county court and as a result obtain a charging order, and subsequently seek an order for the sale of the land?
In the context of negotiating a planning obligation, the charges register on titles relating to the planning application site reveals an entry referring to a 'Charge created by a Deed of Charge' which is in favour of an individual to secure moneys. The Deed of Charge recites its intention was to secure payment of monies but as the calculation of monies to be secured is dependant on events and acts to take place in the future there was doubt whether payment could be secured by way of legal mortgage. The deed provides that insofar as it can be secured by legal mortgage it will be so secured but if it cannot then it shall be secured by an equitable charge. It is usual practice to require all mortgagees to be joined, in a consenting capacity, to planning obligations. It has however been submitted to the LPA that this 'Charge' does not give rise to an interest in land for the purpose of S106 as the interest of the creditor is not capable of being a legal charge and hence it has been registered at the land registry as an equitable charge because it is an interest in an uncertain sum of money. Any guidance as to whether such a form of 'Charge' would constitute an 'interest in land' for the purposes of Section 106(1) would be gratefully received.
I've been looking at the reply and links to a previous question: What is the height restriction on fences that don't need planning permission and does this include any trellis?. In relation to the point that planning permission is required for a fence over 1m which is "adjacent" to a highway, are you aware of any ruling or guidance on what "adjacent" means? If the fence is going to be, for example, three feet away from a highway, is that "adjacent"?
If a seller cannot produce evidence of obtaining crossover consent or permission to drop a kerb and therefore they are potentially in breach of the Highways Act, what can a buyer do to protect themselves?
Does a planning application for an "enabling development" for a listed building have to be decided within a set period of time (even if the applicant consents to the delay)? If so, what is the set period?
Acting for a client purchasing a freehold mews house where the garage has been converted to use as a bedroom. The garage doors have not been removed. A planning consent dating back to 1978 has a condition stating the garage is not to be used as living accomodation. Our sellers are arguing that this condition would no longer be enforceable by the Local Authority given the amount of time that has passed. Is their point of view correct?
My client has a legal easement over neighbouring land. The neighbour has submitted planning permission to redevelop his land. On the basis that the deed is silent, does the neighbour have to provide my client with an alternative right of way whilst the development is being carried out and then reinstate it or can he temporarily interfere with the right of way during development?
If a property has been used for commercial use but before marketing the property, planning permission has been obtained for change to residential use, do you need an EPC for Commercial Use or Residential Use?
With respect to a Grade II listed building, we have listed building consent and planning for an extension including underpinning to a listed boundary wall and reduction of ground levels around it. The structural engineer feels that underpinning the old wall is troublesome and has suggested creating a small retaining wall within the garden near to, but not touching, the listed wall. Below ground level would be concrete 'underpinning' and above ground would be about one brick high of white render (although the render may not be visible at all). I believe it would not need further planning or listed building consent. Permission exists to underpin and the 6" high protrusion would be within the curtilage but not attached to the listed building. Will it need further consents?
I'm acting for the owner of a freehold property. They have applied for planning permission to develop the site and propose to enter into a contract with a neighbour that "the seller will, within 30 days of implementing the planning permission, transfer" a strip of land to the neighbour. The contract incorporates the standard conditions of sale (5th edition) and my question is: if my client decided not to implement the planning permission but sell it with the benefit of the planning permission, would the contract with the neighbour bind my client's successor in title?
We are in the process of purchasing a freehold residential property that was constructed approximately seven years ago. The site plan attached to the planning application for consent for the proposed development (a three bedroom detached house) shows an area of land at the rear of the site which is part of the land in respect of which planning consent is granted, although that area (which is relatively small) is not part of the land being transferred and the seller does not appear to have any legal title thereto. It appears that the area of land in question is not an area on which any buildings were to be erected or garages or bin stores, although I am concerned about the consequences of acquiring land of a lesser extent to that in respect of which the original planning consent was granted. If you have any material/notes on this situation, this would be most helpful.
I am reviewing s.15C and Schedule 1A of the Commons Registration Act 2006 (as amended). I note that there is a trigger event for suspending the right to make an application to register land as a town or village green if a planning application is submitted. If the planning permission is then put into effect, it appears that the right to make a TVG application is permanently revoked unless a terminating event occurs. In which case, is it possible to submit any planning application which once actioned would revoke the ability to make a TVG application? For instance, if planning permission was obtained to demolish buildings located within the site where the grounds are subject to a potential TVG application, would the demolition of the buildings mean that the right to make a TVG is permanently excluded?
(1) Where the rootball of a mature tree protrudes under an adjoining property how can the owner of that property protect that part of the rootball that protrudes under the adjoining property from being damaged by the owner of the adjoining property. (Presumably the position is NOT like overhanging branches where "folklore" has it that you can lop off the overhanging branch provided you throw it back over the fence - ie give the property with the tree in it their property back!) (2) Is the position affected if both properties are in a conservation area - eg do works that affect rootballs require consent in a conservation area? (3) If the adjoining property applies for planning permission to develop the adjoining property it is (many) local authorities' practice to require the rootball to be protected within a certain radius of significant trees - especially in conservation areas. Is there any special procedure for seeking this protection when development is proposed or do you just have to raise the matter on the normal objections form when notice of the planning application is given? Is the position/procedure different between conservation areas and non conservation areas?
Does a requirement under a tree preservation order (TPO), or more specifically a decision of the Secretary of State following a TPO which requires a replacement tree, rest with the owner of the land or does it lie with the person who is seeking the removal of the tree (not the owner)? I know the regulations regarding TPO's changed in 2012 so I'm also wondering whether or not the new regualtions (if they provide an answer) apply to all TPO's or whether the new regulations only apply to those TPO's made after the introduction of the new regulations?
My client is selling their freehold site to a developer under a sale agreement and then entering into a development agreement for lease with the developer which requires the developer to demolish and construct new buildings on the site. The development agreement for lease provides for a new lease to be granted to our client for 15 years once the development reaches a certain standard. We understand that the construction act applies to development agreements unless there is a disposal of the freehold or a leasehold of 12 months plus granted. In this scenario the development agreement for lease does not grant the lease but rather allows for a lease to be granted once the redevelopment works have been completed. Please can you confirm whether the development agreement for lease needs to comply with the Construction Act 1996? There are no payment provisions under the development agreement for lease and so we assume if the Act applies it would only be in respect of adjudication provisions. Please confirm if this is not the case?
Is there any authority as to the meaning of "residential use only" in leases? For example, is there any recognised de minimis carve-out for certain non-material or sporadic, business related uses which would not affect either the premises or surrounding premises?
I have been asked whether a call centre is a "shop" for the purposes of the Sunday Trading Act 1994. I personally do not believe that is given the literal meaning but reading the definition of "shop" could be read this way. Are you aware of any materials or caselaw dealing with this point?
What is classed as taking a step under paragraph 43(2) of Schedule B1 to the Insolvency Act. Would a lender be able to sign a section 106 agreement or would this be classed as a step to try to enforce their security?
I am struggling to find any evidence for the proposition (as stated in various local authority publications and also in English Heritage Guidance) that the Law of Property Act 1925 allows a local authority with a debt on a property to register the debt as a local land charge. I am interested specifically in the position with Urgent Works Notice under section 54 of the Planning (Listed Buildings etc) Act 1990. Once works have been carried out in default by the local authority, then section 55 allows the local authority to serve a notice on the owner of the property for recovery of the expenses. There is nothing expressly in the 1990 Act which states that the sums then due are a local land charge or recoverable as against successors in title. Presumably a fresh section 55 notice would need to be served if the property was sold. I am therefore unclear as to how a local land charge would arise in this case. The 1990 Act would appear to suggest that the sums due do not bind the property or successive owners (and a fresh section 55 notice would need to be served in respect of continuing expenses against subsequent owners). It follows that a local authority cannot rely on section 1(1) of the Local Land Charges Act 1975 (LLCA) which states that a "charge or other matter affecting land" is a local land charge "if it is a charge binding on successive owners of the land affected" and section 1(2) LLCA which says that "any sum which is recoverable from successive owners of lan
Are firms that are CQS accredited required to use the most up-to-date Protocol forms? We are acting for a buyer of a commercial property that has planning permission for change of use to a residential dwelling. The seller's solicitors (who are CQS accredited) have sent us a completed Property Information Form and Fittings and Contents Form but both are the 2nd edition which I understand are now out of date.
Your practice note on stopping up orders under s.247 TCPA 1990 states that s.247 "permits the making of an order for the stopping up of a highway (with vehicular access)", however, this appears to conflict with the guidance in the Planning Encyclopedia which states that s.247 can also be used to stop up footpaths. Please can you clarify.
The defintion of what triggers the payment of CIL and 'commencement of development' I have a query about circumstances wherein a proposed development to a listed building is granted planning permission, and the description of the scheme in the permission covers works which do not actually require full permission (i.e. internal alterations), but which have been included for the sake of seeking Listed Building Consent. Would those works which are included in the PP development description be considered 'development' for the sake of s.208(3) Planning Act 2008, i.e. sufficient to trigger liability to pay CIL?
I act on behalf of a landowner who has obtained planning consent to develop previously undeveloped property. The land is accessed via a bridleway which has served this property as well as my clients adjacent property for many years. The bridleway is pre 1959 and as such I understand the surface is owned by and the responsibility of the local authority. There are different landowners on each side of the bridleway and in the absence of contrary evidence we assume they own the subsoil co-extensive with their property. We wish to install services in the bridleway to serve the development. From whom do we need consent?
We have a client who owns an area of bare land, and we understand that planning permission has recently been granted for a property nearby. Our client has asked whether anything can be done to stop the development of the property. The Title Deeds appear to contain a right to light over the land, and we are wondering if our client could use the argument that the development would hinder / affect his right to light on the land in order to stop the development? We ask this question having seen evidence of case law under Dalton v Angus for their being no right to acquire a right to light over bare land. But, can this exist and stop the development if the right to light was expressley granted by a conveyance?
I note that your precedent overage covenant contains "Planning Permission" as the trigger for the additional payment. With the broadening of permitted development rights, do you think exercising a change of use under a permitted development would be caught by the covenant as drafted, or should the trigger event clause be re-drafted so that a Seller can also benefit from an overage payment where a Buyer enhances the value of land by exercising a permitted development right?
Your note on issues to consider where a property overhangs a public highway is very helpful. Do the same regulations apply where an owner of an existing building wants to install awnings overhanding a public pavement?
For the purposes of a Unilateral Undertaking in respect of s106 Town and Country Planning Act 1990, is a lease granted to the planning applicant by the landowner for a term of 6 years a sufficient legal interest in the land to enforce the terms of that undertaking against them?
I understand that no consent is required to revert to "normal" use when a temporary consent expires. What is the position where a landowner wishes to revert back to "normal" use before the temporary consent expires? If the temporary consent is a development order as defined by s.59 TCPA then s.57(3) arguably applies, but I cannot see that s.57(2) necessarily permits the resumption of "normal" use until the temporary consent is time expired.
A spouse’s rights of occupation may be brought to an end in by the death of either spouse or civil partner under section 31(8)(a) Family Law Act 1996. The Land Registry Practice Guide, LR Practice Guide 63 - Land Charges - Applications for registration, official search, office copy and cancellation, sets out the requirements for an application to cancel a land charge. In order to cancel a Class F land charge it is necessary to use a form K13, PLC - Form K13 - Application for cancellation of a Land Charge of Class F. Applications for cancellation will be rejected where the applicant's name shown on the application form does not match the name of the original chargee and no supporting evidence of devolution is lodged and there is no indication of the capacity in which the applicant is making the application. Unless the applicant is the person on whose behalf the registration was made and is entitled to the benefit of the entry, sufficient evidence of the title to apply for cancellation must be supplied. The nature of the evidence will depend on the facts of each case. I think that evidence of the death of the wife such as a certified copy of the death certificate should be sufficient evidence to the Land Charges Department that the entry should be cancelled.
Where a Use is B1, B2 and B8 and it is suspected that there are retail sales being undertaken to the general public, will this, and at what stage will this constitute a breach of planning control? To what extent would retail sales be allowed in Use B8?
My clients have submitted an application for planning permission and have been told that they need to enter into a Unilateral Undertaking pursuant to section 106 TCPL 1990. Part of the land to which our client is the freeholder is occupied by a commercial tenant (shop) who is currently holding over on a 25 year LTA 1954 protected lease registered at the land registry. Are they required to enter into the Unilateral Undertaking? Legislation does not appear to be clear on this point.
Is the implication of Class A, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 that so long as one has any planning permission to redevelop the land, any demolition of a building would be permitted without compliance with the conditions listed in paragraph A2 and subject only to those matters listed in paragraph A1? For example, a permission granting consent for the demolition of an existing building and erection of 10 dwellings would permit development under the GPDO albeit that it may not implement the relevant consent.
On a review of a title of land in England I have come a across an Agreement that was granted in 1999 that purports to give a right (subject to the grant of a planning permission) to call for an easement over land. Is this competent?
Is there a procedure (other than judicial review where we are out of time) for asking a local authority to set aside a planning permission which we believe was granted pursuant to a misleading application?
A planning permission for an A2 use has a condition that restricts the hours of use. Permitted development rights are then exercised and the premises are used for an A1 use. What is the provision that means the A1 use is caught by the same hours of operation applied to the A2 use? Is it Article 3(4) of the GPDO, or does that provision relate only to conditions applied to planning permissions that exclude PD rights?
Apart from section 196A of the Town and Country Planning Act 1990, what other steps can a Local Authority take to secure entry to a premises for a planning enforcement matter? Can we apply to a magistrates' court for a warrant and what rights would this give is to force an entry?
A condition in a planning permission has been breached – the condition relates to non-occupancy of a chalet during the month of February in any year. It took some time to gather evidence re occupation of the chalet during February, and enforcement action is now being considered (possibly via an enforcement notice for failure to comply with a condition, as a Breach of Condition Notice could be more problematic). However, could enforcement action be supported as any breach would technically no longer be occurring since we are no longer in the month of February? It is noted that in certain circumstances an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on. However, the above situation may not support such enforcement action, and a view on the above would be appreciated.
Where a local authority in its capacity as landowner of neighbouring land has the benefit of a restrictive covenant saying that certain other land cannot be used for particular use(s) without its written consent and the same local authority then grants planning permission for the land to be used for one of those uses, can it be argued that the planning permission constitutes the written consent required pursuant to the restrictive covenant?
My question relates to a property which is 14 years old. Why does a client need to establish whether there is any outstanding obligations relating to a section 106 agreement? The section 106 agreement is dated 1996.
In our scenario a building regulations certificate of completion has not been issued as the building has not been built in accordance with the submitted plans (a lift has not been incorporated into the building). Would the fact that the lift has not been installed mean the building continues to be incomplete therefore leaving the owner open to enforcement action? The works were 'completed' over 4 years ago (albeit not in accordance with the plans).
As I understand it the government is going ahead with relaxing restrictions on home extensions under the Growth and Infrastructure Bill. Will this apply to properties in Conservation Areas and could you point me to the relevant clauses in the latest version of the Bill?
I am dealing with the purchase of a residential property, which was made subject to Agricultural Occupancy Conditions in 1978. The sellers solicitors are of the view that the tie has since been removed by a note on a decision notice relating to the property. If the AOC has been removed, would it be normal for the original 1978 Order to be revealed on the local search?
Planning permission was granted to convert a single dwelling into two four room maisonettes. The current owner has purchased the two leaseholds and the freehold. What Planning Permissions/ Building Regulation Certificates, if any, are required to convert the two maisonettes back to a single dwelling?
A lease on a unit of an industrial estate is to be used for office use. The landlord is insisting that the permitted use in the lease is defined as "light industrial factory, workshop and/or warehouse (with ancillary offices) within Class B1(b) and (c), B2 and Class B8 of the Town and Country Planning (Use Classes) Order 1987." Does my client need to apply for change of use planning permission to use as offices only?
My client has for two years been chasing a local authority for confirmation that works undertaken have discharged conditions on a planning permission. The conditions are modest - relating to matters such as painting railings and so forth. Notwithstanding numerous chaser letters and 'phone calls, the local authority has still not replied. My client is trying to sell the property and the prospective purchaser is claiming the purchase price should be lowered owing to the planning conditions. Would the property be deemed to be blighted owing to the local authority's inaction?
Is a unilateral undertaking appropriate in circumstances in which there are only financial contributions but these are payable if the Developer/Company (who are one of the same) achieve a certain profit by a given time? This isn't an overage arrangement in which the Council will take a proportion of the profits but simply that the profits act as the trigger for when the contributions become payable.
I have carried out a local search on a property which reveals two enforcement notices dated 1994 and 2002 respectively in respect of the unauthorised erection of iron railings at the front of the property. There is no evidence of compliance with the notice. Does an enforcement notice expire after a certain time? Can we argue that the Council can now be assumed to have impliedly consented to the railings?
Where a s106 Agreement imposes a covenant on land against a specified use and the Agreement is noted on the registered title for the land does the subsequent grant of planning permission permitting the specified use override the s106 Agreement so as to obviate the need for a Deed of Release of the covenant?
I have a client who is thinking of converting an annexe at her home for use as a holiday let. Currently it is rated as part of the main house, The main house has planning permission for use as a residential dwelling. I've advised the client that, as a first step, she should go and have a chat with her local planning officer to discuss her proposals and whether she may need to submit an application for a change of use of part of the property for business use. Although, under the Government's latest planning regime I wonder if this requirement (in these circumstances) might now be relaxed. Can you suggest if there are any other legal issues she might need to think about when creating a holiday let?
Please could you let me know if you are aware of a definition of "full planning permission" in English case-law? I am not aware of such a definition in legislation, although I note that "outline planning permission" is defined by section 92 of the Town and Country Planning Act 1990.
If a local authority rejects a planning application which is then reversed in court i.e. application is granted, can the indivdual who is now granted the planning permission sue the local authority? Is there a duty of care on the local authority to the individual?
Please could you confirm your understanding of financial conditions contained in unilateral undertakings. It is my understanding that, as these are protected as land charges, they run with the land and there is no time period for enforcement by the local authority in the event that the conditions are not discharged.
I act on behalf of an LPA Receiver. He proposes to apply for a planning permission for the site, in respect of which he has been appointed. The Local Authority require a S106 agreement. Is the Receiver an agent of the borrower or for the appointing bank in respect of the S106 agreement?
My question concerns the "unadoption" of highways and sewers. If a public highway is stopped up and therefore is no longer maintained at public expense, do the sewers/drains underneath such adopted highway also cease to be maintained by the relevant undertakers?
Do you have a precedent to assign the obligations under a section 38 Highways Act Agreement where part of a development site is being sold and the purchaser is agreeing to take on the obligations of the developer under the section 38 agreement (but is not acquiring ownership of the roadway). I am looking for a Deed of Assignment between the developer, the purchaser and the Council.
Former agricultural land was bought in the 1930s and works carried out at that time pursuant to its use as a cemetery (it has not been possible to acquire documents relating to the purchase or these works). Since then, only half of the land has been used as a cemetery, the rest has remained as open space. It established that it is not possible to abandon a planning permission that has been implemented (Pioneer). Is there any authority to support a similar assertion that it is not possible to abandon part of a planning permission? (Despite the fact that any 'planning permission' here would be deemed permission due to it pre-dating the 1948 Act.) In other words, is it possible to lose the right to develop the remainder of the site into a cemetery on the basis that it has not been developed as such in the previous 70+ years?
Local authorities have permitted development rights to put structures on land to enable them to carry out their functions. If somebody else is carrying out these functions on the local authority’s behalf, do they also have permitted development rights to put structures on land to enable them to carry out functions on the local authority’s behalf?
If A owns land within a conservation area and cuts down a tree without consent from the local authority, A then sells the land to B, can the local authority take action against B, if so, is there a time limit on taking action?
If we receive a petition in connection with a planning application, which is refused permission and subsequently goes to appeal, then under regulation 13(1)(a) of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009, a local authority is required to give notice of the appeal to "any person who made representations to the local planning authority about the application which has given rise to the appeal". That notice must also state that further representations may be sent to PINS within 6 weeks of the start date of the appeal . We would normally just give notice of the appeal to the petition organiser and leave it to him/her to notify those persons who signed the petition and that they can make further representations to PINS. Someone is claiming we should notify everyone who signed the petition. I suppose the question is - does the word "representation" mean the petition itself or each person who has signed it?
My query regards section 106 agreements. I am dealing with a very simple 106 agreement in respect of a building plot for a single new dwelling. The planning application site plan includes (in the red edged area) an access way in third party ownership but which, by virtue of existing easements), will serve the remainder of the plot. The access way land represents less than 10% of the overall plot area. The Council are insisting on the owners of the accessway joining into the 106 agreement even though there will be no actual development on the accessway and they will not have any interest in the development on the remainder of the plot. I say that there is no need for them to join in as the Council will be adequately secured by virtue of the fact that the agreement will attach to the land on which the house itself will be built and the owners of that area are joining into the agreement. The agreement only deals with 1 obligation, i.e. a payment to be made when the house is first occupied. Hence, the owner of the house will become liable to pay as that part of the site will be bound by the s106 obligation. Section 106 itself makes it clear that the section 106 obligations can attach to any land, so even land that is not the subject of the planning application. I cannot see anything to suggest that all of the land that is the subject of the application has to be the subject of the 106 agreement. I appreciate that will often be desirable though. In this case though it s
Can you let me know if you have a contract for the assignment of a lease. The assignment will be conditional on the assignee getting planning permission. What would you suggest I use if you do not have a bespoke document?
I am reporting to a commercial tenant client on the terms of a new lease as drafted by the landlord. The permitted use is B1(a). Term of lease 10 years. Tenant is a commercial client. Please could you explain the following clause and offer some advice on its likely affect on the tenant? Is this a standard clause? 3. Tenant's Covenants 3.18 Planning and environmental (g) If the Tenant receives any compensation because of any restriction placed on the use of the Premises under the Planning Acts to pay to the Landlord a fair proportion of such compensation at the end of the Term otherwise than by expiration of the Term by effluxion of time. "Planning Acts" means "the consolidating Acts" as defined in the Planning (Consequential Provisions) Act 1990, the Planning and Compensation Act 1991, the Planning and Compulsory Purchase Act 2004 and any other legislation relating to town and country planning in force from time to time.
Your practice note on local land chares states that an Article 4 direction (removing permitted development rights) should be registered as a local land charge. Please could you give me the legal authority for this?
I act for a developer who has taken an option to purchase, on the grant of residential planning permission, for a fixed price. My client has agreed to sell part to a larger and better resourced developer intending to enter into a contract conditional upon the grant of residential planning permisssion again for a fixed price, exercising his option once the contract goes unconditional. We wouod rather not assign the option, but can we contract to sell a property that the seller does not (yet) own?
We are acting in a purchase of a freehold property which is a Grade II Listed property and was first listed on the 15th February 1979. Having checked the listing it does not appear that the property was ever inspected internally and there are no specific details given in relation to the extent of the property nor of the internal layout in the listing. In 2005 the vendors obtained Listed Building Consent to undertake some internal alterations, some of which included the demolition of internal walls and that of the lean-to porch. Consent was given by the Council and was made subject to two conditions and on the subsequent page attached to the consent sets out the reasons for the conditions. On this page (in our opinion outside of the conditions) reference is made to Section 8(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the effect of the Act is that where demolition is involved it may not be undertaken until notice of the proposal has been given to the English Heritage Architectural Investigation Section. It appears that at the time the works were undertaken, the above requirement was overlooked. Having investigated the matter we cannot determine what action, if any, the English Heritage could take or the period of enforcement for such action. Are you able to assist?
I act for an individual (a father) (F) who prior to October 1986 owned unoccupied waste land in freehold being a potential development site. In 1986 the father on a whim transferred the freehold to the son (S) by legal transfer. The freehold was registered in S's sole name in 1986 in whom it remains. The land now has huge development potential. F (though absent) has continued to exercise acts of ownwership over the land including applying for planning permission. It was always intended between F and S that F would have beneficial ownership of the land. To confirm the verbal agreement between F and S that F would always have beneficial ownwership F and S signed a home made agreement dated May 1999 whereby "S agreed to forfeit any rights and interest in the freehold and is in agreement with the transfer of the freehold to F". The problem is legal transfer of the freehold never took place. QUESTION: (1) can the written agreement still take place as an agreement to surrender in its own right? (2) Or does the Limitation Act 1980 necessarily make it enforceable as it is over 6 years old? (3) If 2 applies is there any other potential remedy for F such as an equitable one or adverse possession?
If a property has been used as a retail premises for over 30 years but there has never been any planning permission for this use do you have to get a certificate of lawfulness or is there another option?
On an outline planning application can contributions to highway / open space etc be addressed by way of a planning condition as opposed to a section 106 agreement? Can planning conditions be attached to an outline application requiring a financial contribution which would allow a section 106 to be entered into at a reserved matter application stage?
I have received a request from a third party developer's solicitor to see a copy of the section 106 agreement that is currently being negotiated with a landowner. The third party developer does not have an interest in the Site but has obtained permission on the adjoining land. They have asked for the document on the basis that they want to ensure that they are not in a worse position in terms of having to provide additional obligations re infrastucture as a result of the development anticipated on the land. The solicitor states that the developer has a right to see the draft section 106 as we, the LPA, are "obliged to publicise the terms of draft agreement on the planning register under section 188 and also to give developers to opportunity to comment on agreements that affect their developments". The solicitor has been provided with the officers report and minutes setting out the heads of terms. I can understand why they want to see it but I can also see why the land owner may not want interference in the detail when the heads of terms have been settled and made public. Third party involvement would ultimately lead to higher legal costs in negotiating and drafting if not higher obligations. It would appear to me that the developer had their official chance to comment when the matter went to planning Committee to be determined. That said I can not see that the Council would necessarily object if the landowner was willing to provide a copy to the adjoining developer
Can you confirm whether planning permission is required to lay a cable for the electricity supply to a development? The cable crosses third party land. My client is engaged in carrying out some of the works for the development that will need this access for electricity across third party land, including digging the trench for the cabling and laying the cabling. We are concerned as the planning permission for the development itself does not appear to also cover the cable route. The third party landowner has consented with appropriate easements in place. We understand that the electricity company will eventually require a wayleave before adoption.
My client has a property where outline planning was granted for three dwellings. Having reviewed the permission, there is no condition as to when reserved matters should be applied for neither is there a long stop date for commencement of development. My question is whether that allows my client to apply for reserved matters outside the usual 3 year period or is there a statutory requirement that would frustrate this?
We act for clients who own two yew trees adjacent to their driveway, over which their neighbour has a right of way. Our clients' neighbour is requesting that our clients lop the trees to ensure that high-sided vehicles can gain access to her property, which is being renovated. Our clients claim that the trees do not restrict access for high-sided vehicles, however their neighbour maintains that the trees may need to be lopped should a high-sided vehicle need to gain access in the future. The trees are protected by way of a TPO. Do our clients have an obligation to lop the trees to increase/maintain the height of the right of way? Or do their obligations simply extend to not obstructing their neighbours right of way over the driveway in general?
Do compensation rights apply where permitted development rights are withdrawn by way of article 4 direction? We have an owner of an unoccupied public house who wishes to change the use to that of an office. The Council is considering making an article 4 direction under the emergency procedure and I have looked at the Town and Country Planning (Compensation) (England) Regulations 2012.
Is a section 104 Agreement personal to the original covenanting parties? I have a s.104 agreement which states that the agreement is personal to the parties - which seems contrary to s.104(5) WIA 1991. The Adoption of Sewers note states that the agreement is enforceable by the owner or occupier of any premises served by the sewer. Does this mean that the buyer of the land (who wasn't party to the s.104) can try and enforce against the undertaker to call in the bond to do the works so that a vesting certificate can be issued and the sewer adopted?
There have been rumours that compulsory affordable home allocation will be watered down to encourage developers to build. Having done quite a bit of reading I am still unsure which is the relevant statute or regulation that applies at present. Also, I haven't been very successful in finding which changes have been mooted and when they might come into force.
Please can you tell me what use class under the 1972 Use Classes Order would the sale of hot take away food come under? Planning permission for use as a restaurant is in existence but this was granted prior to the 1987 Use Classes Order.
I am looking for the DCLG confirmation that children's homes would be included under the amended C3 that you refer to in Legal update, Amendments made to planning use classes with effect from April 2010?.
I have a situation where planning permission was obtained by a developer on Council owned land and one of the conditions was that a section 278 agreement in relation to highway works be entered into prior to the commencement of the development. The developer will be implementing the planning permission on behalf of the Council and will therefore need to enter into the section 278 agreement. I have not previously dealt with these agreements but whilst I understand that this is an unusual situation I can see no reason why our standard document cannot be adapted and used as I understand that the only requirement for a section 278 is that the HA are satisfied that the works will be of benefit to the public. From my interpretation that does not require any land ownership or planning permission to have been granted and that appears to merely be background in our documentation.
My client has acquired land from the local authority and for the purposes of the development part of a road has been stopped up under section 247 of the TCPA 1990 to enable the laying of services. Should I apply for registration to avoid any queries in the future? The Order is specific as it refers specifically to my client and the relevant planning permission.
My clients is purchasing a site conditional on planning but also conditional on (i) satisfactory environmental, (ii) services, (iii) soil and geotechnical survey and (iv) licensing condition. do you have any precedent conditional clauses dealing with these? i can only find a planning condition on the system.
I act for a client who sold land to the Council a number of years ago after he was threatened with CPO proceedings if he did not sell the land voluntarily. This was on the basis that the land was needed to upgrade the adjoining road to a dual carriageway. This work has not been carried out and there are no current proposals or need for the road to be widened. My client would probably have a valid claim under the Crichel Down rules if the council intended to sell the land. Does he have any power to force the council to sell as it has not been used for the purpose which triggered the threat of the CPO?
There is deemed consent under the GDPO to change use from A2 to A1. But is consent then needed to change back from A1 to A2? At what stage is the deemed consent for change from A2 to A1 actually implemented? When the shop commences trading?
If a public right of way is not on the definitive map but has been there for more than 20 years and is interrupted for 3 years, does that mean the public right falls away? What sort of obstacles count as an interruption to the right of way? For instance, do tables and chairs permanently placed outside a building constitute an interruption?
We are acting for a landed estate which has secured planning permission for the erection of some houses in a village, the majority of which is owned by the estate. Although the houses will be sold, the estate wishes to control certain issues such as extensions external colour of woodwork and parking. The estate planned to dispose of the houses by way of long lease to simplify the control mechanism, and to provide for a reversion of the houses to the estate in due course. Given the rights of owners of long leasehold houses to acquire the freehold, this route and structure is likely to prove unacceptable and so we may revert to a freehold sale with restrictive covenants enforceable as such, and other covenants enforceable via an obligation to enter into a direct covenant with the estate. As the leaseholders right to acquire a freehold cannot be contracted away, we can see no alternative. Do you have any suggestions which might help the estate retain the freehold ?
I understand that under the transitional provisions contained in the CIL Regulations 2012, if a permission (which presumably includes an outline permission) has been granted before a charging schedule comes into effect for a particular area, then the permission is exempt from CIL. However, what is the position in relation to an outline permission which permits the development to be implemented in phases? I note that where you have such a permission, each phase of the development is treated as a separate “chargeable development” (reg 9(4) CIL Regs 2010).
I am acting for a prospective purchaser of land that I have now discovered forms part of a village green registered under the Commons Registration Act 1965. The piece of land being acquired has had a building on it for many years and the building was certainly there prior to registration. The land is being sold with the benefit of a planning permission. The site is subject to a section 106 obligation to maintain the garden area in keeping with the green and, effectively, not to place or grow anything within the curtilage of the site. Your Practice note, Common and town and village greens indicates that where land is registered as a village green it cannot by virtue of the 'Victorian Acts' be developed. Other than the planning permission there are no other consents to the proposed development. My question is, can my client, if it purchases the site, safely proceed with the permitted development pursuant to the existing planning permission and that such development will not be deemed a criminal offence under the relevant legislation?
I'm currently dealing with a section 106 agreement. The developer currently does not have a mortgage. If the developer at some point in the future obtained finance and a charge was put on the land in favour of the chargee would the chargee become liable under the section 106 agreement as a "successor in title" to the developer please?
I have seen reference in a PLC resource today that it is not possible to grant a planning permission subject to a condition that a section 106 Agreement be entered into. The authority for that appears to be para 13 Circular 11/95. However I've found an opinion by counsel (James Pereira ) on the net that this is incorrect at law as the power to impose conditions is wide enough. I notice also that the website of Sefton Council does envisage this scenario. Usually the 106 is completed before but can it be required subsequently as a condition of a permission before development commences. Also what is the position in Wales?
My client is buying a block of flats which was converted in the past from a large house. Retrospective planning consent was granted in 2002 for the use of the property as "9 self-contained flats". However, the seller apparently subseqauently merged four of the flats into 2, therefore there are currently 7 self-contained flats. Do you think that the 2002 consent is still valid, or should a further consent have been obtained before merging the four flats?
Can a landowner be forced by the Local Highway Authority to divert a public highway across their land? By way of background, there is a privately owned boundary road alongside a public highway. It transpires that the private road was built over part of the original Public Right of Way back in the 60's (although we are unable to determine whether the road or the path was in existence first). There are currently a number of obstructions (such as a sign and a kissing gate) along the Public Right of Way and following a complaint from a member of the public (about the obstructions), the Local Authority have requested that the pathway is diverted across the private land to avoid the obstructions (and the landowner to meet the cost of doing so). The landowner does not want to do this.
I have a commercial client who is proposing to take a tenancy of a commercial premises. The premises were used as class B1 offices, but have been vacant for nearly a year. In the interim a proposed new tenant applied, and was granted planning permission for a change of use from class B1 offices to class D1. The planning permission/change of use was never implemented and a tenancy was never taken. My question is, if my client wishes to take a tenancy of the premises, will they need to apply for planning permission to change the use of the premises back to Class B1 offices?
I am acting for a client who has recently exchanged on a property. This property was originally a childrens home however planning permission for offices was granted in the late 80s conditional on the offices being occupied by Social Services. Now social services have left the property, my client needs to know whether the use is residential, or office. Also, why this is and if their are any ways the change it.
I am acting on purchase of a completed development (11 residential units) from receivers so very little information is available from the Sellers. The highways search has revealed that the roads are not adopted but there are express rights to use these so there are no access issues. The Local Authority Search has revealed an Advance Payment Code Notice which required the developer to pay 250k. The roads have clearly been constructed but the Council has confirmed that they remain unadopted. They have also confirmed that a section 38 agreement is in negotiation but that the Coucnil is not in a position to consider completing this at present. The Council have also confirmed that no monies have been paid and no bond has been entered into in connection with the Advance Payments Code Notice (which seems a somewhat after the fact given the roads have been built). My question is whether as buyer of a property my client will inherit any liabilities under the Advance Payment Code Notice?
Can s73 of the Town and Country Planning Act 1990 be used to vary a planning condition, when the planning permission in question (i.e. to be varied) was granted by a Planning Inspector on appeal? If the section can be used but you have to get Planning Inspector's consent - what is the mechanism for getting such approval?
My query relates to disposal of open space (not designated as public open space) by a local authority. The definition of “open space” applied to disposals under section 123 Local Government Act 1972 is “land laid out as a public garden or used for the purposes of public recreation or land which is a disused burial ground” (as defined in section 336(1) of the Town & Country Planning Act 1990). The National Planning Policy Framework however adopts a much wider definition which includes “all open space of public value, including not just land, but also areas of water (such as rivers, canals, lakes and reservoirs) which offer important opportunities for sport and recreation and can act as a visual amenity” and “derelict open land” is included in the examples of open space which may be of public value. I would be grateful for any guidance on the extent to which local authorities are bound by this planning guidance when disposing of open space?
I have a client who owns a Victorian semi-detached property. At first floor level, one of her rooms overhangs the adjoining property next door - as-called "flying freehold" - and it is obvious that the property has always been constructed in this way. The overhang is about the width of a single bed, and about twice as long - say 8 foot by 15. The issue concerns the roof space above, which she is in the process of converting. As originally constructed, the roof void ran right through the two houses, without a fire wall. But the previous owner of my client's house then created a stud wall in the attic, the line of that wall mirroring the layout on the floor below, i.e. the "overhang" was replicated at attic level. That wall was constructed probably less than 10 years ago - maybe 2002/3 or thereabouts. Title is registered. The Land Reg plan does not show the overhang at any level (but then again limitations of scale would make this difficult). I haven't seen the pre-Reg documents. Question: My understanding is that a freehold title included airspace above - does this apply even to the first floor title? Does the existence of the freehold "footprint" at first floor level mean that my client can lay claim to the same "footprint" at attic level?
Most of the examples of section 215 notices give 3 months for compliance. I can't find reference to 3 months in any legislation or the Best Practice guidance however I wondered whether there was any case law which dictated that such period should be used?
If planning permission is granted by the Secretary of State, or an Inspector appointed by the Secretary, on appeal, is that permission capable of being challenged by judicial review. If so, what are the circumstances?
A planning permission was granted on 4 October 2010 and states that the permission must be implemented within 2 years from the date of the grant of the permission which I understand means the permission expires on 3 October 2012. Please can you advise whether you are aware of any case law where the date that the permission expires is disputed?
I have a client who intends to take an option over Council land. The consideration will be delivery by developer client of a new retail unit. The planning application for the new retail unit is currently being determined but has been delayed sorting out planning issues. A Community Infrastructure Levy (CIL) Charging schedule may well now come into force for the Local Authority before the relevant planning permission is issued. If our developer client has to pay CIL they are less likely to do the deal as it then becomes less financially attractive overall. We want the Council to assume the CIL liability. Putting aside the issue of whether the Council will financially accept this, is it lawful for a Council to assume CIL liability or can they elect to waive it where they retain freehold and/or long leasehold? I can't find anything in the CIL Regs preventing a LPA from assuming CIL liability with result of its estates department paying the CIL liability to its planning department or giving the LPA the discretion to waive the CIL liability.
Under S.219 of the Town and Country Planning Act 1990 as a local authority we are able to execute works required by s.215 notice, however, there does not appear under s.219 for a requirement for a warrant, does his imply that we do not require a warrant and we are able to go ahead and just do the works?
Please could you advise whether you know of a clause in a planning agreement which effectively states that purchasers of individual dwellings on a large residential development are not liable for the discharge of planning obligations which should have been discharged by the developer?
Can a developer upgrade a byway open to all traffic with the approval of the local authority, but without involving the owner of the sub-soil? I have read Judith Pain's response to "my client is buying land where access needs to be obtained over a bridleway" dated 8 March 2012. In my situation the track is a BOAT. One person at the local authority has confirmed that it is not adopted and another has confirmed that because it is a BOAT the surface is vested in the local authority. My concern is whether we also need to involve the owner of the sub-soil. It is unregistered, so we would have to start with the presumption that half the subsoil is owned by each of the registered freeholders on either side of the track.
An Applicant (application dated September 2012) is seeking a certificate of existing lawful use for a building that was used for just over ten years until September 2011 as a training centre. The building has not been in any use of any kind since then. Is the correct date for determining the application ten years prior to the date of application? If so, presumably the Applicant would have established only a 9 year period of breach and the Application would be refused accordingly?
Are there any formalites required to relinquish a planning permission which has been implemented. In this case the works carried out were sufficient for the LPA to agree that implementation had occured, but the development was never completed. The developer now wants to carry out a different development and will give up the right to complete the implemented development. It has agreed with the LPA that it will enter in to a planning obligation in a s.106 agreement for the new planning permission to covenant not to proceed with the implemented development if the new planning permission is implemented. Is a covenant in a s.106 agreement sufficient to relinquish the extant planning permission or do further steps need to be taken as and when the new planning permission is implemented?
Does a planning permission for change of use render a s52 Agreement entered into in respect of the previous planning permission unenforceable? Or should a Deed of Variation or similar be entered into to reflect the change of use and remove obsolete restrictions?
To whom should an unsuccessful aplicant for variation of a s.52 agreement (the precurser to s.106 agreements) be made? Is it the Planning Inspectorate or the Lands Tribunal? I am aware a refusal to vary s. 106 agreements can be appealed to the Planning Inspectorate under s.106B, but this appears to apply only to 'planning obligations' as defined in s.106(1). It appears that when the system for planning agreements was reviewed in 1989 it was agreed that there should be an ability to discharge or vary agreements other than by way of applying to the Lands Tribunal (as was the process prior to 1990) but it is not clear whether this part of the 1990 Town & Country Planning Act wasintended to apply to 'planning agreements' made under earlier legislation.
If a building has A3 (food and drink) use pre Town and Country Planning (Use Classes) (Amendment) (England) Order 2005, does that mean that post-2005 it will have A3, A4 and A5 permitted uses? The building was operating all those types of establishments under the pre-2005 A3 class.
We have a situation where a developer wishes to access his site over a byway open to all traffic (BOAT). Highways officers believe that traffic movements on a BOAT should predominantly be pedestrian/horse in nature. There will be additional traffic movements created by the development including the use of lorries at least whilst the works are carried out and Highways wish to know whether they could object to the development on the grounds of unsuitable traffic movements. I am unsure how to advise, as the BOAT can obviously also be used for vehicle movements and a TRO could be created preventing lorries/vehicles above a certain size, using the route - which would have the consequence of preventing the development anyway. Although it does seem reasonable that they could object on highways grounds.
I am trying to find out whether parties can lawfully enter into a planning obligation after planning permission has been granted and the development built? Also, is there a different procedure for varying a unilateral undertaking as opposed to a bilateral section 106 agreement?
I have a client who has a 10ft right of way in common with others over a small private roadway. Unlike others he wants to develop land he owns which can be accessed over this right of way. The owner has grown leylandii hedges which lie on the boundary (possibly outside) and spread some 3ft over the right of way. Planners will not grant planning permission with the bushes like this. The purpose of the right of way can still be exercised but not this additional element - does it sound like it is reasonable to go for a mandatory injunction?
(Subject to any restrictions on the title, rights of light and the provisions in the Party Wall Act), is it possible for my client to contruct a new building incorporating a wall immediately inside the boundary between his property and the adjoining property? In this case, there is no building on the adjoining land within 10 feet or more of the boundary line and no windows on the adjoining property whihc overlook this boundary. Is this something which is considered by the planning authorities?
I understand that it is up to the proposers of BID to determine the amount of the BID levy and how it will be calculated. Once a majority votes in favour of the BID then all non-domestic rate payers are liable to pay a BID levy. Can you challenge the level of the BID levy? And what if for example the improvements have not benefited the district and/or the individual property owner?
Are the provisions of s.79 Bulding Act 84 and s.47, s.48 of Planning Listed Building and Conservation Areas Act 1990 mutually exclusive or would the provisions of the P(LBCA)A have to be carried out first before proceeding with the Building Act provisions? My question relates to at what stage is action under P(LBCA)A 90 exhausted allowing the local authority to proceed under s.79 Building Act 84?
Article 13 of the Localism Act (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012 sets out the transitional provisions in relation to planning enforcement. We want to decline to determine a retrospective planning application submitted in June 2012 where an enforcement notice was issued in December 2011. Does the transitional provision mean that any retrospective application submitted where an enforcement notice exists and was issued prior to 6/4/12 has to be determined or does the provision mean that both the enforcement notice and the retrospective application have to be submitted before 6/4/12 before the transitional provision can apply.
The Deeds are silent on responsibility for maintenance of a boundary but an 1860 Enclosure Award indicates the responsibilities. What status will this have in a dispute and would it override precedent, if historically a different owner has taken responsibility from what the Enclosure Award says?
Can the court order one of joint legal and beneficial owners to transfer to the other their legal and beneficial interest in the property? (for a premium) TLATA gives the court wide discretion and I have seen commentary suggesting that the court might be able to make such an order where parties were otherwise deadlocked, to enable the trust for sale in effect to be operated.
Do you think that a door which opens out over a highway needs a licence under section 177 or 178? This would only happen when the door is opened to allow someone to exit the building onto the highway. No part of the building will be constructed on the highway.
In respect of a Listed Building in a Conservation Area, Planning Permission was granted in the 1970s for use of a residential house as "nine flatlets" (non-self-contained letting units). That use continued for many years and each of the nine units had a separate Council Tax but there was no registration as a house in multiple occupation (HMO). My client wants to revert back to use as one single house. Is Planning Permission required on the Use Change (we appreciate that we will need Listed Building Consent for the physical alterations). The question has arisen on enquiry by the Lender who is reluctant to lend in case the Use as one house is denied.
We act for a small developer who has a plot of land. They have sold off 3 plots and retain some land upon which they will attempt at some time in the future to get planning for one or two more plots. One of the owners to whom they have already sold is extending his property and is using our clients retained land to store materials etc. Our clients have come to an agreement with him that he can continue to do this on the understanding that he does not put in any objections to our clients proposed planning application. Would you have a precedent of some type of agreement for this (or one that could adapted) that both parties can sign?
If a land owner continues to breach a section 215 notice despite prosecution (on numerous occasions) etc does the local authority have any power to enforce the sale of the land or to acquire the land? If the landowner continued to breach a section 215 notice and the local authority took direct action after every breach to clear the land (it's a landfill site) and put a charge on the land after every occasion - could the local authority reach a stage whereby they could enforce the sale of the land due to the value of the debt they own over the land?
Is it possible for a local authority to agree to enter into a section 38 agreement for the adoption of a road if some of the road is outside my client's title and is unregistered land? My client would be willing to get an indemnity policy in respect of the unregistered land.
My client is selling a church at auction. The church was used as a place of worship, but planning permission has now been obtained to convert the property into a residential dwelling house. Does my client need to ensure an EPC is prepared?
I am acting for a purchaser of a residential property who is purchasing it as an investment with a view to letting it out on Assured Shorthold Tenancies. The property is affected by a restrictive covenant in the following terms: "not to carry on any trade or business of any kind upon the property or any part thereof". I seem to recall seeing one of your articles (perhaps Ask the Team) which advises that the carrying out of the business of a letting to be in breach of such a covenant. It may be that the article was referring to holiday lettings rather than an Assured Shorthold Tenancy but I would be very glad to have your comments.
Please can you advise whether Regional Spatial Strategies have now been abolished in accordance with the Localism Act as I am given to understand that this has not yet happened pending the undertaking of sustainability appraisals in respect of each Strategy despite my understanding that section 109 of the Localism Act has come into force.
My company is a residential property developer and we are transferring all their property to an, as of yet, incorporated company. The various properties that my company currently holds are as follows:- Freehold of one building, my company's title to which is not yet registered. We have exchanged contracts on some units and will need to serve notice on the proposed purhcasers. Do you have a notice document for this? Freehold of another building, title of which is already registered. We have exchanged contracts on the majority of units but not yet completed on any due to ongoing planning issues. Do you have a notice document for this? Freehold of another building, some of the units are completed and occupied, some are exchanged, and some are only reserved. Do you have a notice document for this? I would imagine that a notice for all 3 would be on virtually identical lines although I am slightly concerned about the planning issue and the length of time this is taking to resolve. Surely the change of Freeholder would not offer the prospective Leaseholder a way out of the contract? There is no mechanism in the contract that specifically allows the Freeholder to transfer the property to another company.
Can a local authority enter into a planning obligation as freeholder if also LPA? If developer with option to purchase enters planning obligation and they subsequently acquire the land do they bind successors-in-title to the legal interest in the land?
In Wales, if an industrial unit was being changed from a joinery into a food production unit (specifically producing cupcake accessories and delicatessen products), what use class would it fall under? No food will be sold to the general public on the premises, the units will simply be used for production.
The question relates to a planning issue. Sites were allocated for housing in the council's Core Strategy which was considered by the Inspector in the public Examination last year. The Inspectors Recommendations were adopted which included the allocation for housing on the site in question. Can a site, allocated for housing in the Council's Local Development Plan (but planning permission not yet granted) be de-allocated notwithstanding that the said site is suitable in planning terms for development, physically capable of being developed and can be developed within plan period?
If a lease contains a covenant limiting the use of a property to a single private property and planning permisson is granted for the property to be a house in multiple occupation, does the grant of the planning permission affect the enforceability of the covenant and can an application be made for its removal?
I have a client buying a live-work unit, which he intends to use for residential purposes. He has told me he will be working from home 1-2 days a week and, as I need to give some confirmation to the mortgage lender about the intended use, I need to know whether working from home is sufficient to constitute live-work usage for planning purposes, even if he is only working from a computer.
If a dwelling has been tied to another building by way of a section 106 agreement and an application has been made to discharge the tie, can additional obligations which would normally have been dealt with by way of condition be inserted into the deed of variation in order to make it acceptable to release the tie? By way of clarification of 'tied', I am referring to where occupation of a dwelling is restricted by way of a section 106 agreement to an employee of the adjoining building (e.g. a shop).
I have been asked to research whether the grant of planning permission is considered to be an 'improvement' for which compensation is payable to the tenant under Part 1 of the Landlord and Tenant Act 1927. The Act does not appear to set out what constitutes an 'improvement', although the right to compensation arises where the improvement 'adds to the letting value of the property'. Is there any further guidance as to what constitutes an improvement for the purposes of the Act?
I would like to know whether there is a general authority which confirms local planning authorities take into consideration all information provided to them before granting planning permission. This would mean an applicant who has been granted planning permission would be bound by the plans and ideas submitted via their application, even if the permission itself does not specifically mention them. Is there a simple authority that confirms this?
A certificate of lawful use has been granted for a caravan in the grounds of a dwelling. The landowner now wishes to apply for permission for a garage on the site. In order to avoid over-development on the site the local planning authority would like to make the grant of permission for the garage subject to the revocation of the CLEUD. The tests for revocation of a CLEUD set out in s193(7) of the Town and Country Planning Act 1990 do not appear to be met, so could the CLEUD be revoked by way of a s106 agreement?
I am dealing with an application to discharge a planning obligation. A formal application has been made under section 106A(b). The applicant is stating that it is not necessary to enter into a deed if the application is approved. This seems to go against the idea that a deed may only be changed/discharged by another deed but section 106A (2) does only refer to a deed being entered into in the case of discharge by agreement under section 106A 1(a) rather than a formal application Can you please assist - is a deed necessary to discharge an obligation where a formal application is made under section 106A 1(b)?
I am acting for the Developer of a small residential building estate, where following the application for Building Regulation approval, the Council have served Advance Payment Code Notices, in relation to the Estate Road which will remain private. They are however also insisting on the Developer entering into a S. 106 Agreement, which requires the Developer to set up a Management Company which will responsible for the maintenance of the road and in respect of which the Plot purchasers will be members. A further requirement is that all plot purchasers enter into a covenant not to require the Road to be adopted at any time in the future. My client is asking whether the Council has the right to insist on all of this. I can't find anything. Can you guide me to anything which will help?
My client is purchasing a property that benefits from A5 Use - I understand that there is a permitted change from A5 to A1. I have been asked to confirm that the property can be used for both without any further application to the LA?
Is Conservation Area consent required for replacement windows? I have a client who is buying a property that has recently had window replacement at the rear of the property. Indications from my research suggest that replacement windows in a conservation area would fall under permitted development and that there are no restrictions on this unless the building is listed. Is this correct and does it make a difference whether the windows are at the front or rear of the property, as with satellite dishes?
Will the building of a retaining wall and flat platform within the boundaries of a commercial property require planning permission? The Buyer is aware of the structure and that it does not have planning permission.
The difference between when to use a Section 247 order and when to use a Section 257 order under the TCPA 1990 is unclear. Can you please clarify. Does a Section 247 order only apply when the applicant is looking to stop up a highway but if the applicant wishes to stop up and divert a highway, then ought to do so under a Section 257 order?
I agree with what you say here (Practice note, Charges: discharging a registered charge on completion). Near the end of your note, you say that one solution is to "ask the bank to make the application on form AP1 to discharge their charge by way of a DS1". True, but you could actually make this a bit simpler by asking the bank to fill in a form DS2 rather than the longer form AP1. As the DS2 clearly relates only to discharge of the registered charge, the bank may feel more comfortable doing that.
Paragraph 4(c) of Regulation 5 of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004.1633) states that a ‘responsible authority’ is only required to carry out an environmental assessment where ‘the plan or programme is the subject of a determination under regulation 9(1) or a direction under regulation 10(3) that it is likely to have significant environmental effects’ Section 19(5)(a) of the Planning Compulsory Purchase Act 2004 states that (5) The local planning authority must also— (a) carry out an appraisal of the sustainability of the proposals in each document; The Planning Compulsory Purchase Act 2004 appears to make an appraisal mandatory in every case but the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004.1633) appear to only require an environmental assessment to be carried out where it is likely to have significant environmental effects. Is an appraisal of the sustainability under the Planning Compulsory Purchase Act 2004 different to an environmental assessment under the Environmental Assessment of Plans and Programmes Regulations 2004 please? If not, which legislation (the 2004 Act or the 2004 Regulations) takes precedence? Any guidance would be much appreciated.
I have read your very informative practice note of Public Rights of Way. I have a query in relation to the extent of the duty of a private landowner to repair a public right of way which passes over his land and becomes damaged. The right of way runs inside a sea wall (and so I consider is likely to fall within the Marine and Coastal Access Act 2009. I will seek clarification on this point but I dont believe it impacts on my question for now). The sea wall became damaged and as a result the footpath, running behind the wall and on a private landowner's property, was also damaged. Pursuant to the Occupiers' Liability Act 1984, section 1(1) and 1(3) it seems obvious that the landowner owes a duty of care and must take some action in respect of the damage. I note the provisions of section 1(4) and 1(5) which seek to limit the action that must be taken by a landowner owning such a duty of care. Section 1(5) suggests a warning will be sufficient in some circumstances. I can see that my example is not such a situation where simply fencing off the damaged path and putting up a warning notice will be sufficient as a permanent solution - not least because this would appear to me to be the obstruction of a right of way and accordingly the landowner would be liable under the Act granting the right of way. On the assumption that the above analysis is right so far, is there any guidance on the application of section 1(4) OLA 1984 and in particular "the duty...to take such care
Do you have a precedent for an assignment of a receivable, namely either the actual compensation (if the amount is known) to be paid by a local authority in respect of various properties where they have exercised CPO powers or the beneficial interest in those monies, which the receiving client wishes to transfer to a 3rd party. Are there any SDLT implications?
I am acting for a client purchasing a new property. The Section 106 Agreement contains an exclusion clause in relation to private individuals but makes no reference to mortgagees of the private residential properties. Can the obligations of the S106 Agreement still be enforced against the mortgagee or, as the mortgagee acquires their interest from the buyer, are they also excluded. I would be grateful for your comments.
Under s73 TCPA 1990 an application can be made for a "minor material amendment". Having looked at the notes on this section the advice is that if approved it creates an entirely different planning permission. As such it suggests that all conditions in the previous permission should be repeated and that either of the permissions should be executed. I am advised that we have quite a lot of these at present and I initially believed that the linked s106 could be dealt with by Deed of Variation. However if they are entirely separate permissions and either could be executed then I believe they will have to be dealt with by way of a further s106 agreement. Can I please have your views on this?
Can a party to a section 106 agreement enforce a covenant given by a local planning authority under the agreement? i.e. the usual covenants provided by LPA's relate to issuing the planning permission after signing of the section 106 agreement. If for example the LPA did not do this what action could a party to the section 106 agreement take please? I'm only used to hearing about LPA's enforcing planning obligations against owners and developers. A planning obligation currently relates to land (adjacent to an application site), the Council is the freeholder but lets the land to a third party under a tenancy which expires in 2052 when it will thereafter return to the Council. The planning obligation currently binds the Council's tenant. However the Council want the planning obligation to be in perpetuity. However when the tenancy expires in 2052 the land will revert to the Council and the planning obligation (to maintain land) would then be void for being unenforceable as the Council/LPA cannot enter into a planning obligation with themselves even in such a scenario - is this correct please?
I have a situation where the Council as landowner has submitted a planning application and a s106 is required. I am advised that the Council took counsel's advice some years ago on how to deal with this situation and the advice given was that a Unilateral Undertaking could be entered into by the Council as landowner. I have discovered that the whole of the application land is not owned by the Council but part is owned by 'another'.I have now got a copy of 'another's' title which shows that there is a mortgage on that part of the land.In the circumstances I believe that we would need a UU executed by the Council, another and the mortgagee. Would you agree with this?
I act for a client who has acquired a long leasehold interest of the ground floor to a residential property. The remainder of the property has been leased to the landlord's wife for a premium of £1.00. It transpires that the property was converted into two dwellings without formal planning approval and the local authority have issued enforcement notices for the property to be re-converted to a single dwelling. Appeals have been lodged against the enforcement notice and these have been dismissed. We are now seeking to resolve the matter with the Landlord but are concerned that he may seek to transfer his interest in the freehold title. Whilst the leases are registered against the freehold title, can we also register a restriction / notice against the freehold title to prevent the landlord from transferring his interest in the property pending the resolution of this matter. If so, what would be the appropriate steps to take and what forms would need to be used etc to register the restriction / notice at the Land Registry?
Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012 - I would be interested in your thoughts on Article 16 of the above. Perhaps I am just being dense but I am not sure I understand what it is driving at. I almost expected it to be the other way round - that the new rules WILL apply provided that the Landlord complies with the new rules in relation to an existing rules withhin 30 days of 6th April 2012.
A developer has outline planning permission for a development which is subject to a section 106 Agreement in an area that has not yet adopted the Community Infrastructure Levy. If CIL is then brought in by that Local Authority after the execution of the section 106, would: a) a variation of the planning permission; or b) progressing from outline planning permission to detailed planning permission allow the Local Authority to levy CIL on the development?
If planning permission has been granted to homeowners to construct a wall by the front of their home that encloses highways land, can the owners claim adverse possession? Or is the land enclosed still a public highway?
I was looking for a list of operations that have been accepted by the court as amounting to Material Operations for the purpose of the commencement of development, the implementation of a planning consent. I could not find what I was looking for; might you be able to help, please?
Circular 05/05: Planning Obligations (paragraph B54) states that "the purchaser of the development site may also have an "interest", for example where he/she is a party to a contract conditional upon obtaining planning permission for the land, or has a right under an option to purchase the land". A purchase agreement has been signed between a developer and landowner and is conditional upon the grant of planning permission. Is a conditional agreement such as this a "legal interest" for the purpose of a section 106 agreement (under the Town and Country Planning Act 1990)? If so, the landowner and the developer need to be parties to a section 106 agreement (despite the conditional contract not being registered at the Land Registry) - is this statement correct?
When a Stopping Up Order/ Diversion Order is made by the Secretary of State under s247 of the Town and Country Planning Act 1990, is it necessary for the development that the planning permission which requires the Stopping Up Order to be commenced before the Stopping Up Order takes effect? And if it is necessary, to what degree does the development have to be commenced?
I act for a local authority. We want to appropriate land for planning purposes under s.232 of the Town and Country Planning Act 1990. S.232(4) states that before appropriating any land which "consists of or forms part of an open space", an authority must advertise the proposal to appropriate. My question is - what constitutes "an open space"? Is this land which is designated as Public Open Space, or can it just be any land which is not currently developed? (ie land which is grassed, some of which the Council maintains, and otherwise).
I have a query in relation to an option agreement to be entered into between a land owner and a developer; and in particular, a query about the definition of the option period. The option period is defined as commencing on the date on which planning permission is granted, and ending 20 working days after notice is served by one party to the other terminating the option period. I am used to seeing a specific definition of option period (ie commencing on one date and ending on another), rather than an option period ending by virtue of a notice being served. (There is no long stop date).
I understand from the planning guidance notes that there are restrictions of 1m and 2m on the permitted height of garden fences and I wondered if you could please confirm the permitted heights and whether or not this includes trellis? I would be grateful if you could please confirm the legislation as I have been unable to locate this in the Planning Acts?
I have been asked about the reasonableness of a Council refusing to discharge a section 106 agreement (prohibiting residential use of part of a storage building) notwithstanding the fact that planning permission for such a use has been granted on appeal. I am sure I recall seeing a case on the point, but have been unable to locate it. Do you have any ideas?
I am looking into a set of restrictive covenants over a property. The covenants require that 'all plans are first approved by the Vendor or his Surveyor (such approval not to be unreasonably withheld)'. I need to find some case law that relates to approval not to be unreasonably withheld stating instances where it has been found to be unreasonable so that I can assure my client that they have a chance of getting their plans approved. I would be very grateful for any help and information you can provide.
Could I have your views on the following. If you have a commercial premises that is to be used for 2 uses (eg restaurant (A3) and takeaway of hot food (A5)) would you require planning permission for both use classes. I wondered if it would only be A5 you would need given that, under the GDPO, it does allow change direct from A5 to A3. (If this is right and that is the case (ie the GDPO change of use is the driving consideration - if there was no option to change under GDPO provisions then would you need A3 and A5). Or alternatively, does it boil down to which is the prevelant use eg turnover attributable to takeaway vs restaurant in terms of percentages or areas ? Any thoughts or useful articles would be much appreciated.
I recently used PLC's standard document contract for sale and purchase of land conditional on the buyer obtaining planning permission in a matter. The final version of the contract was different from the precedent, but the basic framework followed the framework of the precedent quite closely. My client (the buyer) submitted an application for planning permission within the contractual timetable laid down by the contract but the planners have indicated that they are minded to refuse the application unless my client withdraws it before the planners are obliged to make a decision. My client has therefore decided to withdraw the application and to resubmit a revised application taking into account the planners' objections. The buyer and the seller are both fine with this approach and in reality that's what counts I guess, but I am not sure, however, where this leaves my client in the context of the strict letter of the contract. The original planning application has not been refused. It has certainly not been granted and the planners have not failed to determine it. Where in your view does this leave my client in the context of PLC's standard form of contract and how long does he have in which to submit the revised application? Can the parties simply agree to deem the original planning application as refused in which case the buyer has a further 40 days in which to lodge an appeal leaving the timeline to run on. Or, does the timeline effectively stop until one of the t
We act for a client who has a shop and wants to put table and chairs on the pavement outside the shop. According to the council website our client needs a table and chair licence if the pavement is outside the scope of our client's demise. I have looked at the plan for the property and the extent of the demise is unclear on this. I have rang the council and they were also unhelpful. Is there any general law/cases on the extent of demise, for example does the demise extend to the furtherst part of overhang of the building/does it extend as far the paving area which above the basement?
House A has a derelict summerhouse on its property. The owners applied for planning permission to replace the summerhouse. The Owners of the neighbouring property were asked for their comments before planning permission was given and raised no objection to the application, as they had been assured by the applicants that the summerhouse would be used for their exclusive enjoyment. Permission was granted. The Owners of House A have replaced the summerhouse but are renting it out to tenants. If the neighbours had known about the proposed use of the summerhouse they would have objected to the planning application. My question is: what recompense do the Owners of the neighbouring property have? I have the impression that they do not have a remedy.
I am acting for a buyer who is about to exchange contracts for the purchase of a proeprty. The seller has just received a letter form a neighbour claiming that a large tree that has been on the boundary but within our sellers property has caused tree root damage to his garage. Our seller has put us on notice of a possible claim by the neighbour. What is the client's liability to the neighbour once he becomes the owner of this property? Could you please set out the basic principles of liability to the neighbour for tree root damage? Also should my client seek to continue insuring with the same insurer as the seller?
Do you have any precedents for an Inter-Developer Agreement to cover a situation where two Developers have agreed to share ownership of a site (to including specific obligations in relation to the construction and future maintenance of infrastructure etc)?
I am trying to establish whether I should be concerned in connection with the lack of planning consent for use of the property as three flats. My enquiries have revealed that the use has been since 2005 although one of the flats had been used by the current vendor for many years before. Is this sufficient evidence of established use ? I might add that building regulation approval was sought in 1988 for "internal alterations to self contain existing flats".
An article in yesterday's evening standard suggested that in Westminster and Camden planning permission was required if a landlord let a property for less than 90 days. I cannot find the legislation that requires this. Can you direct me to it.
We have a situation where it is intended to grant planning permission for a development. However due to a reduction in public car parking at the site to nil, in order to make the development acceptable in highways terms there needs to be a requirement to provide alternative parking. Can the planning permission impose a condition to provide car parking off-site in the same way that affordable housing sometimes is?
I act for buyers of commercial premises used for over 10 years until 2007 within C2. Between 2007 and 2009 the premises were used for D1 but without planning permission. Will the break in the C2 use cause potential difficulties when applying for a certificate of lawful use?
If there was a s.106 agreement in place in relation to 2 tips on a site created back in 2000 and now there is to be the imposition of a new s.106 agreement in relation to the whole site (for which the 2 tips comprise of) then which s.106 agreement takes precedent? What is the legal status of the 106 agreement created back in 2000? Is the 2000 106 agreement overidden?
Your Practice note, Stopping up and diversion orders under section 116 of the Highways Act 1980 is very useful, but it would also be helpful if there could be a follow up article which deals with the procedure if any party, for example an adjoining owner, objects to the stopping up of the highway. We currently have exactly that situation and it must be fairly common for objections to be raised.
Should a restrictive covenant contained in a Section 106 agreement be protected by entry of a Restriction on Land Registry title or is it sufficiently protected by way of an entry on the Local Land Charges Register?
If the Council gives someone consent to fell some trees which are protected by a Tree Preservation Order on condition that they are replaced, and that person then sells the property before the replanting has been carried out, can we pass on the replanting duty to the new owner? If so how do we enforce?
This relates to the ways to notify the grant of planning permission. The Town & Country Planning Act 1990 (s70 to 78) mentions the local authority needs to notify the applicant, but I haven't found anywhere anything clearer. I would want to know who exactly needs to be notified and what is good service. In my particular case, I have the owners of the land, the planning agent (who made the application) and Solicitors. This is a retrospective planning application, but when granted, conditions were imposed. The agent was notified, but since there has been issues between agent / solicitors / owners, the information did not pass through and the solicitors are now arguing service was not correct (the time limit to appeal the conditions has passed). The notice was on the internet and they were fully aware of the date of the committee meeting, so they did have means to find out the outcome (which they may have done).
I am representing a local planning authority in negotiating a s.106 agreement. The land to be bound by the s.106 obligations are owned by The Crown Estate and The Secretary of State for Communities and Local Government. Are there any issues I should be aware of?
In 2008 my client sold a piece of freehold land to a developer for the purposes of contructing a medical centre. After being built, it transpired that the developer had connected into a private sewer (shared by my client and its neighbour) and a private lateral drain, both located on my client's land. The connections were made in 2009. No such right was granted in the Transfer to the developer as it was anticipated that the developer would connect to the public sewer direct under the adjoining highway. An agreement was reached prior to 1 July 2011 that the developer would pay my client for the (retrospective) right. The figure was arrived at based on the beneficial costs savings that were occasioned by the developer not having to provide alternative service and a deed would be drawn up accordingly. The deed was to provide for an apportionment of future maintenance obligations for the drainage and water services, especially as the surgery was (and still is by a large percentage) the highest user. Question: Does the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 mean that a Deed is not longer required and or that payment is no longer due? If a Deed is still required, which PLC precedent would be appropriate in the circumstances? If payment is still due, should it be reduced due to maintenance responsibilities passing to the Regulated Sewerage Company?
Assuming a conservatory falls under a planning permission exemption, do we require planning permission or is it caught by building regulations to convert it from general use into a kitchen. Any new structural opening between the conservatory and the existing house will require building regulations approval, even if the conservatory itself is an exempt structure.
If a local authority fail to notify an owner of neighbouring land of a planning application so that they are unable to object, is there any means of redress for them if the application is subsequently granted against their wishes?
I have a situation where a client has a septic tank that is located in a neighbour's garden. The septic tank is failing and needs to be replaced. In doing so, it is proposed that the septic tank is replaced with a more modern package treatment plant and also, it will not be possible to place it in exactly the same position, but immediately adjacent. I understand that being located in a neighbours garden that there are no permitted development rights, but the existing septic tank system has planning approval dating back to 1995. My client has been advised by the local authority that a new planning application will need to be submitted and he cannot rely on the existing permission to replace the existing septic tank with a package treatment system. Is this correct?
I need to negotiate a Deed of Variation to a s.106 Agreement. The original party to the agreement is a limited company. I note from the paperwork that that company is now "(in administration)". Is there anything I should be wary of or include in the agreement?
I am acting for a bank on a development finance matter. The buyer has secured an outline consent (subject to approximately 40 conditions) and more recently a reserved matters approval (subject to approximately 20 conditions). Are the 40 conditions to the outline consent still relevant or do I now only need to satisfy myself as to the 20 conditions attached to the reserved matters consent?
Following on from the previous query, we have granted planning permission for a development where Certificate A was submitted, only to be told, after the event, that the applicant did not, in fact, own the property at the time of the application, but acquired it afterwards. The former owner is unhappy (as I presume, with the benefit of planning permission, he could have sold the property for more), and has now queried the validity of the permission. Whilst authorities must trust the applicant to submit the correct certificate, ownership is ultimately irrelevant in considering whether a planning application should be granted. However, I wonder if there is any case law on this point?
When is the correct point for the Council to serve an APC notice under s.220 HA 1980? s.220 refers to the 'passing of any required plans' where required plans means those plans relating to building regulation. My question is whether an APC notice should be served under s.220 by the Council 6 weeks from when the building regulations are applied for, or whether it is 6 weeks from when building regulations are granted?
Re CIL and the option agreement precedents surely a developer is not going to want to serve an assumption of liability notice or give owner a CIL indemnity until at the very earliest developer has served an option exercise notice? It seems to me that what owner has to watch is that owner does not allow development to commence (eg by early entry by developer) BEFORE the land transfer has been made by owner to developer. Once the transfer has been made the developer becomes the owner and will trigger CIL payment on its commencement of development. Do you agree? Where a developer is allowed to draw down in tranches by successive option exercise what will the CIL situation be? Will developer on becoming the landowner of the first tranche become liable on development start for all the CIL applying to all of the consented land? And if that is correct what happens if the developer does not draw down further tranches of the consented land - will the liability be apportioned over all of the consented land with payment being triggered only on commencement of development of the individual tranches? Again if that is correct presumably landowner needs to watch out where developer is given, say, drainage rights over consented land not acquired for the benefit of the consented land acquired - presumably commencement of construction of the drainage will trigger the CIL payment in relation to that drainage land and here owner will need an indemnity as owner will not have parted wit
I am acting in relation to the purchase of a bed and breakfast which I believe should have planning permission for C1 use. The valuer states that "the change from C3 to C1.... is a somewhat grey area and depends on the degree of use of the property for bed and breakfast accommodation". I would be grateful if you could provide some clarity on this point.
I'm dealing with a purchase of a mixed use property. The ground floor is currently used as offices, the first floor a residential flat. My Local Search reveals an application for change of use of the whole building from ground floor (retail Class A1) and first floor flat (Class C1) to Class D1 (non-residential institution). I am told that the property has never been used for D1 use. Quite apart from the fact that the ground floor use class appears to have been wrong originally anyway, the Seller is arguing that the D1 use was in fact never implemented and therefore the change of use remains as before. Is that correct or does an application for change of use need to be made in any event.
My client is buying land from a local authority. It intends to simultaneously exchange and complete the sale agreement with the Council. Is there any risk to my client that a 3rd party could seek a judicial review of the Council's decision to dispose of the land to my client? If so (and assuming that the 3rd party successfully overturned the Council's decision to sell the land), could a court order that the Sale Contract and Transfer Deed are set aside (and thereby effectively overturn my client's purchase)? If the answer to these questions is "yes" then should I advise my client to wait for a JR period of 3 months to expire after the exchange and completion before my client commences any development works on the land it is intending to acquire from the Council?
I'm looking for a clear and fairly basic flowchart showing the various deadlines and timescales involved in planning applications/ decisions/ challenges/ call in/ judicial review etc. to inform drafting a contract conditional on planning. Whilst I appreciate that your standard form is drafted with all such deadlines in mind, it would be useful to have a quick reference guide both for ease of drafting and to inform discussions with the client. Do you have such a resource/ do you intend to produce one?
Outline planning permission has been granted for a development, and at the same time, a s106 agreement was entered into. Approval has now been sought for the reserved matters, and the council is using the reserved matters application to insist upon amendment of the section 106 agreement (to increase the amount of financial contributions payable). Can it lawfully do this?
The query relates to the relevant enforcement period for a breach of planning. I am buying a property for a client which was originally converted into two flats (with planning permission to do so). In the last nine years it has been subdivided again, but without planning permission, and is now 4 flats. Is the period during which the Local Planning Authority would need to have taken enforcement action four years (in which case we are safe) or ten years (in which case we are not). S171B(2) of the town and Country Planning Act 1990 states that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of four years beginning with the date of the breach. I am not clear where that leaves subdivision of dwellings.
I have a fairly complex commercial property question - am really trying to find out the type of document I should be drafting to cover the issues that have arisen. The Council own land which is to be sold to a Buyer. The transaction will involve the following: 1) sell the land to the Buyer 2) Grant a right for the Buyer to use some Council land in order to do works on the land sold in 1) - I propose to draft a licence to deal with this to give the Buyer authority to work on the land 3) The Council have to grant any additional rights that may be required over another piece of Council land that will allow an adjacent piece of the Buyer's land to be developed in accordance with an approved planning permission. (not sure whether this should be done by a separate agreement, or whose obligation it is to draft this document) 4) The Council have to remove any historic covenants on the land (the Council don't own this land) 5) Financial conditions where the Council will require overage provisions over the land to be sold to the Buyer. so a fairly complex financial arrangement binding it together. Any suggestions or pointers would be very welcome
I am presently drafting a s.106 Planning Obligation. The Owner of the land is a trustee who is also a registered charity. Do I treat them as I would any other Owner of land or are there particular or special rules applicable to trustees and a charities that I should be aware of?
When dealing with the purchase of a new build property, do you still need to carry out the LLC1 and Con29 searches? In addition, is a NHBC certificate handed to the buyer's solicitors upon exchange of contracts with regards to a new build property (construction has been completed)?
In the document "Advertisement Control: enforcement" under "Good practice for LPAs", there is mention of a database of prosecutions for unlawful advertising and fly-posting on the planning portal. I have created an account for myself on the said portal but don't seem to be able to access the database. Does the database still exist? I prosecute for unlawful signs and would be interested in accessing the database and adding my own prosecutions if that was possible.
I would be grateful for a comment on an advertisement query that I have. Some months ago an advertisement board was erected at a nursing/care home and a banner was put on it. Planning permission was sought for its retention and refused. Since that time the banner has been removed but despite requesting the removal of the board this has not been done. I do not believe that the boarding alone constitutes an advertisement because it does not fall within the definition of s336(1) of the town & Country Planning Act because whilst it is classified as capable of being an advertisement it is not '...employed wholly or partly for the purposes of, advertisement, announcement or direction...' I would appreciate your view as my Client believes that it is still an advertisement and wants to take action.
Decking is not classified as permitted development if it has a height of more than 300mm. If the land is sloping, where should the measurement be taken from, the highest point, the lowest point or a mid-point? I can't locate any cases on this point, although I note that under the provisions of the Planning Act the measurement is taken form the highest part of the ground.
I have a client who operates a surveyor's practice (pretty much full service - but I'm checking if there is a formal agency department, although they definitely deal with investments sales/purchases). A landlord is trying to lease my client a premises where the Headlease only allows Use with Class B1. I was struggling to find a note explaining the full remit of the different classes and would be grateful if you could point me in the right direction. In particular, I'm concerned to establish that the proposed use won't fall within Class A2 (and therefore not be permitted).
The use of a building falls within Class A2 of the Town and Country Planning (Use Classes) Order 1987. The owner wishes to take advantage of Class F(b) of the Town and Country Planning (General Permitted Development) Order 1995 and change the use to a mixed use of A2 use and as a single flat. Can the flat be used in such a way that it has no functional or operational link with the A2 use and still constitute a mixed use for the purposes of the Order?