I have a situation where a planning condition and an obligation contained in a section 106 agreement which are related do not accord in terms of timing for compliance by the Developer. In terms of enforcement which takes precedence?
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?
I have been looking for a precedent "Removal Notice" to require the removal of a structure used for the display of advertisements in contravention of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). The power to issue a Removal Notice is given by section 127 of the Localism Act 2011 which inserts section 225A and section 225B into the Town and Country Planning Act 1990. I have been looking for a template Removal Notice on the website but I have not been able to find one. Would Practical Law be able to upload a template Removal Notice and send me the link?
Where is the legal authority that says planning applications should be taken in accordance with current planning policies (i.e. those that exist at the time of the date of determination rather than at the date the planning application is registered)?
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?
The NPPG was updated in November 2014 to introduce a Vacant Building Credit wherein existing vacant floorspace can be discounted from affordable housing calculations for proposals to convert or redevelop. What is not clear from the guidance is: How long must a building be vacant to apply; and How is the 'discount' calculated in real terms, where the threshold is based upon unit numbers and not GFA? Logic would suggest that the GFA to be lost would equate to a particular number of units based upon the average unit size?
We have a client who wishes to use permitted development rights to create a hardstand to park his vehicle on outside his property. There is an Article 4 Direction effecting the area under the Town and Country Planning General Development Order 1977 (SI 1977/289), the wording of which removes the relevant permitted development rights. However, the 1977 Article 4 Direction does not include provision for future and superseding General Development Orders when such revision or replacement occurs. With the Town and Country (General Permitted Development) Order 1995 (SI 1995/418) now in place, will the 1977 Article 4 Direction still be effective in the area? The Town and Country Planning General Development Order 1977 does not appear in the list of revoked instruments in Schedule 3 of the 1995 Order.
My understanding is that you cannot obtain outline planning permission for a change of use. However, can outline planning permission be granted for a development which consists of part change of use of an existing building together with operational works to alter the building and land within the site (i.e. if the application does not consist wholly of a change of use)?
Does a grant of prior approval under Part 3 Class N of the GPSO 1995 need to be registered as a local land charge? This can be granted conditionally which would appear to fulfil the requirements for registration under the Local Land Charges Act 1975. However, it is unclear whether an unconditional prior approval would need to be registered?
An application is made for listed building consent (LBC) to demolish a listed building, but before this is determined the local authority serves a section 78 Building Act notice (dangerous structure) upon the owner requiring immediate action to be taken to obviate the danger. As a result the building was demolished, the building control officer agreeing that this was the only viable solution. My question is, does the application for listed building consent need to proceed or is there no requirement for LBC if a section 78 notice has been served?
An applicant obtains planning permission, doesn't implement such and instead obtains a section 73 consent which varies the original permission. That section 73 consent is then implemented (in part) but the applicant then decides that they would rather now implement the original permission (and effectively abandon that section 73 consent). Are they now able to go back and implement the original consent or does the implementation of the section 73 consent prevent such? When considering the two permissions as a whole they are clearly inconsistent, however, the works that have been carried out to date are consistent across both permissions.
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.
Article 4 Town and Country Planning (Development Management Procedure) (England) Order 2010/2184 provides that: “Where access is a reserved matter, the application for outline planning permission shall state the area or areas where access points to the development proposed will be situated.” Does access have to be to a public highway? Does a development site have to adjoin a public highway?
What type of external alterations/additions to a property (ground floor flat) could be considered not to be caught by the definition of 'development' and therefore not triggger the requirement for planning permission? Specifically, is there an argument, legislation or case law to support that planning permission is not required for a sort of glass veranda/patio roof (which also has removal glass sliding doors/sides) on a ground floor flat on the basis it is not development. The council have termed this a 'conservatory' and are threatening enforcement action or a retrospective application.
We refused an application last year for a housing development. The applicants appealed but the appeal has not yet been heard. A policy change will now enable us to approve the application if a further submission is made. As the 12 month period from when we refused the application will expire at the end of this month, do we have discretion to waive the application fee or do we have discretion to extend the 12 month period for a resubmission? Or has the 12 month period not commenced as the appeal has not been determined?
If the written description of the extent of a listed building or scheduled monument is different from what is shown on the plan what is the procedure or effect? Does the plan or written description take precedence? Work has been carried out on an area around a monument and the developer is saying that the plan showing the listing is incorrect (the developer followed the written description) and therefore unauthorised works have not been carried out however English Heritage is saying the plan is correct and the written description is incorrect.
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?
Hello I am considering whether pd rights (cou from office to residential) apply where the planning permission contains a condition restricting the existing use to an accountant's office, notwithstanding the provisions of the use class order (the condition makes no reference to the GDPO). I understand that there are conflicting planning inspector decisions on this issue, and therefore any input would be gratefully received.
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?
1. Can a Grampian style planning condition be used to prohibit development on land outside of the control of the applicant until such time as: a) specified highway works have been implemented and b) specified financial contributions (secured via a separate planning obligation) have been paid? 2. In relation to b), could the payment of contributions be considered to constitute a 'specified action' as referred to in the Planning Practice Guidance at paragraph 005 Reference ID: 21a-005-20140306?
Can a Local Planning Authority be required to refund unspent monies paid to it pursuant to a section 106 Unilateral Undertaking if a provision is inserted in such by the Applicant requiring it to do so? As it is a Unilateral Undertaking the LPA are not covenanting to do anything. However, does such a provision, inserted by the Applicant as a term on which it is being paid, become binding on the LPA?
The LPA has granted planning permission for a development but inadvertently included an incorrect plan. The usual consultation was undertaken in relation to a single storey building and permission was granted in reliance on a report which clearly set out these matters. However, the actual permission includes a plan showing a two storey building. The permission does not detail the plans at all and only includes the standard condition stating that the development must be carried out in accordance with the (incorrect) plan in the schedule to the permission. The applicant is supportive of the change so may be able to make a further application under section 96A of the Town and Country Planning Act 1990 (TCPA 1990) for a non-material change. We are reluctant to use section 97 of the TCPA 1990 in light of the potential compensation implications. How can the correct plans be substituted?
Is it possible to seek an injunction to remedy the breach of planning control? I am aware that section 187B Town and Country Planning Act 1990 (TCPA 1990) allows a local authority to seek an injunction to 'restrain' an actual or apprehended breach of planning control. But are there any provisions which would allow a local authority to seek an injunction to not only restrain a breach of planning control but to also 'remedy' the breach? It should be noted that an Enforcement Notice has not be served, but section 187B TCPA 1990 states that it is not necessary that other powers under this act need to have been exercised to seek an injunction.
Does the installation of external (or solid) wall insulation require planning permission? Or is it permitted development? There are no complicating factors, it is not in a conservation area and it is not a listed building. There is guidance from DCLG called 'Permitted development for householders April 2014', and page 11 is relevant.
I see that Dawson ruled that you should consider the law applicable when the development was started. Therefore, presumably the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) (GPDO 1995) doesn't apply to works that were carried out pre-1995? If this is the case, what planning law would have been applicable before 1995?
I am acting for a bank in the grant of loan facilities to an equestrian centre. Planning permission has been granted for various equestrian activities such as an equestrian exercise area, stables, indoor riding school, horse exerciser and the erection of a dwelling for use by an equine worker. I am asked to state the authorised used to the security property for the purposes of the town and country planning legislation.
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.
This is similar to the question raised on 9th September. Can the local planning authority revoke a "prior approval not required" for an extension on a residential house granted under Class A of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 (SI 2013/1101)?
We have recently successfully prosecuted 2 owners for failure to comply with a section 215 notice under the Town and Country Planning Act 1990. My query is how long should the LPA wait before it makes a further prosecution, if the owners still do not comply with the section 215 notice?
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?
Where a unilateral undertaking has been entered into in order to obtain the grant of a planning consent, but such planning consent was never implemented and subsequently elapsed, is there an implied term that the Unilateral Undertaking is then discharged?
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?
We as a law firm are moving to a new site. Currently we believe the classification is B1 but we believe that we may need to change the class to A2 so that we are able to see clients. What would be the process to transfer the classification and how difficult would this be?
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?
In relation to a commercial sublease of less than seven years, would the freeholder be required to serve notice on the subtenant and occupier of an application for planning permission to demolish and redevelop the leased premises? What options would a subtenant have in relation to opposing such an application?
If a client has already been granted permitted development under class M Part 3 of Schedule 2 to the General Permitted Development Order 1995 (GPDO 1995) in November 2013 to use for business purposes (B1), can they now qualify under the new class MB to use the property for residential purposes?
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?
An enforcement notice was served under section 171 of the Town and Country Planning Act 1990. The person who the notice was served on has now died and his estate is now in the hands of personal representatives. My client wants to prosecute for failure to comply with the notice. Is it possible to prosecute the personal representatives for the deceased's non-compliance with the notice?
Where there is a property which is currently classed as a hostel, how would you go about changing the use to that of a private dwelling? What processes/costs are involved? Would the council need to be involved or an application to the Land Registry?
Once a Certificate of Lawful Use has been granted, does any subsequent break in continuity of that use have any effect? For instance, if a Certificate is granted for a residential flat that was constructed without planning consent is the Certificate then rendered invalid if the flat is unoccupied for several years?
Do you know of any specific cases where a planning committee has granted a resolution for planning permission, but has then delayed in giving the permission so much so that the local planning authority is then required to take the matter back to committee?
I am acting for a developer who executed a section 106 agreement in 2002. The Agreement provides for a contribution towards junction improvements at the development site. The development went ahead with alterations and it is only now that the council has demanded payment of the contribution. The developer says that due to changes in the surrounding area it is now no longer possible to carry out those "junction improvements". The demand is not statute barred. If the council is not in possession of the money and is no longer able to carry out the envisaged improvements, are they able to demand payment?
I am trying to ascertain what the situation is with third parties in respect of cost awards in planning appeals. Unreasonable "parties" at planning appeals may have costs awarded against them. But what is the definition of parties? Does this include third parties?
Are there any circumstances in which a third party (in this case an affordable housing provider) can be required to enter into a deed of adherence in respect of a section 106 agreement? There is a clause in the section 106 agreement that binds the property and states that it will be enforceable against the owner, its successors in title and those deriving title under it. I'm struggling to understand why there is a separate clause requiring the affordable housing provider (who will enter into a long lease for the affordable housing element of the property) to enter into a deed of adherence to observe the terms of the section 106 agreement?
What is the procedure for taking a matter back to the magistrates' court under section 216(6) of the Town and Country Planning Act 1990? Is it as simple as laying information in the same way as for the original offence and how does the 6 month time limit apply? Will it be from the date of the original conviction?
A notice under section 215 of the Town and Country Planning Act 1990 served by the Local Planning Authority (LPA) included the incorrect address but the correct postcode for the land. The plan attached shows the correct property and the notice was served on the correct owners of the land. The local authority have now realised its mistake and would like to either vary or withdraw and re- issue the notice. Is there a legislative power to enable this to be done?
We as a local authority sold a property in 1983. There was a covenant forbidding the erection of any further building on the property. We realised the covenant in 2005 and in or around 2008 part of the property was sold and our planning department granted consent for the erection of a single dwelling. We have now realised that they have encroached on to our adjoining land. What action can we take bearing in mind we granted the permission in 2008? The planning application plan showed the position of the new dwelling within the owners land. We also released the covenant so we knew of the development but seemed to have slipped up in not checking the final dwelling.
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).
A client has purchased a property comprising of offices (falling within class B1(a) of Town and Country Planning (Use Classes) Order 1987), and intends to develop it. Pursuant to the Town and Country Planning (Permitted Development) (Amendment) (England) Order 2013, an additional Class J was added to the Town and Country Planning (General Permitted Development), meaning the client is permitted to convert the offices into Class C3 dwelling houses. Class J contains a time limitation where such development is not permitted if the use of the building as a dwelling house was begun after 30 May 2016. What does this mean in practice? Must the building be occupied as a dwelling house by 30 May 2016? Or is it sufficient that the development works are complete by this date?
Does an enforcement notice (for change of use) have to be served on one property only, or is there anything which prevents a single notice being served which applies to several neighbouring properties all affected by the change of use?
Where land, which is the subject of a section 52 agreement is now solely owned by a party to that agreement, can that sole party on its own discharge the section 52 Agreement? If yes, how can it be done?
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.
Within CIL Regulation 40 (as amended by the 2014 Amendment Regulations), the definition of an “in-use building” refers to “in lawful use”. Has anyone found a definition for “in lawful use” either specifically for the purpose of CIL or by reference to any other definition, for example, section 191 Town and Country Planning Act 1990?
I take it that a Certificate of Lawful Use or Development does not have a statutory "shelf life"? I am currently looking at one which does not contain any condition limiting the period of time for the development to be in place.
Background Information Following receipt of evidence that a mobile home was being used for residential occupation on an occasional basis at weekends, my Instructing Local Planning Authority issued a Certificate of Lawfulness for the "occasional use" of the mobile home. However, whilst the Summary of Decision referred to the weekend use, the Certificate itself made no mention that the use was restricted to weekends only and just referred to the “occasional use”. The LPA have since obtained evidence that the mobile home is being used for permanent residential occupation and now wish to take enforcement action to prevent this intensification of the approved lawful use. Whilst I am confident that any Enforcement Notice will stand up to a Ground B Appeal insofar as there is strong evidence that the mobile home is now being used for permanent residential occupation, I am concerned that a Ground C Appeal may be successful on the basis that the Occupants may be able to argue that any permanent use of the mobile home would not constitute a material change in use from the approved lawful “occasional use” because the Certificate of Lawfulness (when read without the Summary of Decision) is imprecise and fails to clarify what exactly is meant by the term “occasional use”. E.g. An Appellant may argue that occupation for up to 6 days a week could fall within the remit of “occasional use” and so any intensification to allow for permanent residential occupation (7 d
If planning permission has been granted for the "erection of three retail units (use class A1) and associated parking" in 2002, would a planning application need to be submitted to merge the three units into a single retail unit? The units are comprised in a single building and the work involved in merging them will not require any external alterations to the building and the removal of the partition walls will not increase the internal floor space by 200sqm.
A certificate was sent to the planning authority confirming our client owned all the land subject to the application. It turns out he does not own the land. Would subsequently acquiring the land cure the problem retrospectively?Would the permission granted be void or voidable as a result of the incorrect certificate?
Class J of Part 3, Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) grants development (in England) consisting of a change of use of a building and any land within its curtilage to a use falling within Class C3 (dwelling houses) from a use falling within class B1(a) (offices). Can Class J be applied to part of a building (e.g. a mixed use development with many floors, where only a few floors have been used for b1(a) purposes and the desire to convert relates to those qualifying floors)? I have been unable to find any guidance that specifically addresses this point, but have recently seen a response from a local authority in determining a proposal for prior approval for change of use under Class J, refusing to grant prior approval on the basis that "The development would consist of a change of use of a part of a building as opposed to all of the building and as such would not be permitted by Class J of the Town and Country Planning (General Permitted Development)(Amendment)(England) Order 2013'. Are they correct?
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).
We act for a client who is leasing two floors of a building and has planning permission to change the use of both floors from offices to residential but has only changed the use of one of the floors to residential. Is it correct to say that the change of use to residential has now been implemented and, if so, does this mean that the continued use of one of the floors as an office is in breach of planning regulations and would entitle the LPA to take enforcement action?
My client has owned a commercial unit for over 10 years and I am currently trying to remortgage the property. I need to confirm the current class of use but the Local Authority have come back to say there have no record of the current use. My client states that is it a Class 1, what other proof am I required to obtain?
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?
Where a planning appeal has been lodged against non-determination of a planning application pursuant to section 78(2) of the Town and Country Planning Act 1990 - what is the stage at which the Council's involvement in decision making ceases to have effect? Is it at the time of lodgment with PINS or the date on which the appeal is validated by PINs and a formal start date provided?
I have a query concerning immunity from enforcement action, having considered your practice guide on the matter. I am acting for a client on the grant of a long leasehold interest in a residential flat, conditional planning permission for which was obtained, and the construction of the flat completed and "signed off" under building control in 2003. Subsequent to that date, alterations have been made to the flat which have not been authorised. The property is situated in a conversation area, can you confirm what enforcement action the Local Planning Authority may have as regards these subsequent alterations, all of which I understand are difficult to date?
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?
For a new pumping station to be built is planning permissions required? Do water/sewage companies have any statutory rights which mean they can build a pumping station where they like? If a pumping station is to be built within close proximity to a property, do the owners of that property have any powers to prevent the pumping station being situated in close proximity to their property ?
I have a situation where section 106 payments were reduced under appeal. My client is selling the land now but the buyer is insisting that the section 106 agreements are varied by deed to reflect the reduced amounts. I have written confirmation from the council that only the reduced amount is due and therefore believe that the council is now estopped from demanding full payment. The buyer is insisting that only a variation by deed would bind the council. Do you have a view?
What is the status of a planning permission which has been granted based upon a footprint area that the applicant later becomes aware that part of the footprint is outside of his area of land and is in fact owned by a third party? Would this invalidate the planning permission as it has been granted on an area that exceeds the applicant’s ownership?
My client wants to convert part of a pub (for which they have planning permission for) into B1. Can permitted development rights under Class D of Part 4 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 be relied upon subject to the conditions therein? Or is it only when all of a property is to be converted say from A4 to B1 that these permitted development rights would apply?
Can an LPA enforce the planning obligations over land that are referred to in a section 106 agreement, but which do not form part of the site that is being developed ("the Surplus Land")?In this instance a developer has obtained planning permission and entered into a section 106 agreement, but for some reason they have included the Surplus Land which they do not own, and which they are not, and have no rights to, develop. I have a client who is looking to buy the Surplus Land, but it seems to me that the Surplus Land is caught by the section 106 obligations and so my client could potentially be taking on responsibility for the obligation even though there is no development taking place on the Surplus Land.
Can a shop selling food heated on the premises (as its main business) fall within Use Class A1 (as opposed to A5)? The food would be pre-cooked elsewhere and only heated up on site for sale when ordered.
Are local authorities subject to a statutory duty to act reasonably when dealing with planning conditions within a planning permission? I understand that they have 8 weeks in which to respond to an application in respect of a planning condition and that their decision can be appealed to the Secretary of State, but I am trying to ascertain whether they are also subject to a statutory duty to act reasonably when considering the same.
A section 52 agreement was entered into to secure the grant of planning permission for a dwelling house in 1985. The agreement provided that the remaining land of the applicant should be subject to a restriction that it should never be developed. The land subject to the restriction has been sold off and is in 3 separate ownerships. My client has obtained planning permission to build additional houses on his land and the planning authority has agreed to release the restriction. The question is can the planning authority merely release my client's land or must it release the whole of the land and involve the other landowners? My client is concerned that one of the landowners will be awkward as he is opposed to my client's development.
We have a client who is taking a commercial lease of part of a building. The local search has revealed two section 106 agreements, both are over 15 years old but there is nothing to confirm that the obligations have been complied with. Could the agreements be enforced against our client the commercial tenant?
My client exchanged contracts for the sale of a property subject to the grant of planning permission. My client submitted the application after exchange of contracts and appealed against the non-determination of the application by the LPA, in accordance with his contractual obligation under the conditional sale contract. The local authority have now stated that they will grant planning consent, subject to two minor conditions which are acceptable. However, before the LPA can determine the application, the appeal to The Planning Inspectorate will have to be withdrawn. My understanding is that if the appeal is withdrawn, then the LPA does not have a subsisting planning application to determine, as the application was deemed to have been withdrawn on lodging the appeal to The Planning Inspectorate. What is your view please?
What happens to an article 4(2) direction under the Town and Country Planning (General Permitted Development) Order 1995 (GPDO 1995), if the extent of the conservation area is later reduced in size and therefore the list of addresses in the annex to the direction is incorrect?
Under section 73 of the Town and Country Planning Act 1990, a time limit cannot be extended requiring commencement of development by a certain date. However, it would appear section 96A of the same act could be used to extend the time limit where the authority agree it is a non-material amendment. Do you think it correct that section 96A could be used to extend the time limit for commencement of development, assuming the authority agreed?
Please can I have an opinion on the following planning query, namely: I am acting for a tenant who is proposing to take an underlease of a Unit. I have been provided with a 2001 planning consent authorising "Use Classes B1 B2 and B8" for the Estate of which the Unit forms a part. The existing tenant has used the Unit for Class B8 storage since 2001. Our client's proposed use is Class B2 industrial use. My question is whether the 2001 planning consent can be relied upon for the proposed Class B2 industrial use or whether the fact that the Unit has been used for Class B8 storgae use for more than 10 years means that this is the only permitted use for the Unit. This flows from my reading of Class E of Part 3 of Schedule 2 of the General Permitted Development Order 1995.
Which class of the Use Classes Order does a data centre fall under? I am aware that it used to be sui generis but a Planning Inspectorate decision indicated that it is now Class B8. I can't find out much information on this and would appreciate some clarity on the point.
If an owner of a building has express planning permission to demolish it, but would have had permitted development rights to demolish in any event, does the demolition occur pursuant to planning permission or permitted development rights?
Is it possible to include as a condition in a planning permission for an airstrip under The Town and Country Planning Act 1990, a condition that: " Planes must not land within 20 metres either side of a public right of way and must not fly any lower than 5 metres above the right of way"?
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?
To what extent does a local authority have to take into account its own supplementary planning guidance when considering a planning application? Are the rules in the guidance binding or are there circumstances in which a departure from it can be justified? In this case, the supplementary guidance states that a blank 2 storey wall cannot be built within 14 metres of the living room window of my client's property, yet a planning application has been allowed which falls foul of this, on the basis that the intrusion is not significant. He is therefore considering appealing the decision on the basis that the guidance has not been followed. Do you have any guidance on this point?
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?
Where a local authority serves an enforcement notice for breach of planning but the notice was not correctly served on the owner and the summons for non-compliance is withdrawn, does the service of the invalid notice break the 4 year rule for applying for a certificate of lawful use if the local authority later fail to properly serve a notice?
Can an Article 4 Direction under the GPDO 2005 (to remove permitted development rights) have retrospective effect? For example, if a company converts a building from office to residential use (Class B1 to residential), and is only half way through the development when the direction comes into force, will the residential units already built be in trouble for not having had planning permission? Then in the same scenario, will the company need planning permission for the remaining units (that still need to be converted from office to residential) where the Article 4 direction comes into force half way through?
We are acting for a developer who intends to submit an application for outline planning permission on a site where it has already submitted an outline application and for which permission was refused by the Local Authority. I note that section 9(1)(b) of the Town and County Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 as amended by the 2013 Regulations exempts an applicant from paying the planning fee on an application that is made following the refusal of planning permission, providing the conditions in section 9(2) of the Regulations are met. The main hurdle to overcome in section 9(2) seems to be subsection (c) which says that the new application has to relate to development of the same character or description as the refused application. The wording of the provision suggests that the Local Authority has an absolute discretion to determine whether or not the application is of the same character or description. I would welcome your comments on what criteria a Local Authority might apply in deciding whether an application is of the same character or description, and any cases you know of dealing with this point.
We are a local authority who as standard require a surety clause within our section 106 agreements. This has been challenged by a handful of developers and as such my question revolves around the validity of a surety clause. Note the surety is required to be put in place prior to commencement of development and needs to provide for payments due under the agreement as well as provision of on site works e.g open space.
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.
The Council issued an enforcement notice relating to a material change of use back in 1991, it was appealed and dismissed by the Inspector. There was some compliance with the notice and further action was not taken. The breach has started again and normally I would say that as there is an enforcement notice on the land, the issue of immunity is not relevant. However, it transpires that the enforcement notice was never put on the planning register but is on the local land charges register - do you think that this has any bearing on the issue of immunity?
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?
I have clients who are bound by a section 52 planning agreement. They wish to have it discharged. It would seem that the procedures in section 106A(1) for applying to the local planning authority for the modification or discharge of a planning obligation only apply to a "planning obligation" as defined in section 106(1). The latter section allows any person interested in land to enter into an agreement containing specified terms. Does this imply that a planning obligation can only be an agreement entered into after the coming into force of the Town and Country Planning Act 1990 (TCPA 1990), i.e. not applying to a section 52 agreement already entered into? If my clients cannot apply to the local planning authority under section 106A for the modification or discharge of the section 52 agreement, can they apply to the Lands Tribunal under section 84 of the Law of Propety Act 1925? I would have thought that section 106A(10) only excludes the possibility of applications being made to the Lands Tribunal in respect of planning obligations entered into after the coming into force of the TCPA 1990.
If an environmental report was submitted in the past to satisfy a planning condition and was successful, and it has recently come to light that the report was invalid/erroneous, could the local authority cancel the discharge of the planning condition?
Where there is only one planning unit for office use comprising a ground floor and first floor, does Class J permit the conversion of the first floor office into five flats? Or is it one office for one flat? If the office was converted to one flat, the subsequent conversion into more than one flat would need permission - see section 55(3)(a) of the Town and Country Planning Act 1990 that prevents the change of use from one dwelling house to more than one. So permitting Class J to allow more than one dwelling house would seem to circumvent the spirit of section 55(3)(a) if that is the case.
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?
In relation to a prior approval granted pursuant to Class J, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 can a LPA lawfully attach condition akin to those that would be attached to a planning permission?
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.
In a shopping centre, would you consider it necessary to obtain planning permission to materially alter an inidivudal retail unit or would it be likely that such a matter would not fall witin the definition of development?
I would be grateful if you could assist in shedding some light on the following. I am trying to ascertain what use class a caravan park would fall within. The most appropriate appears to be Class D2, assembly and leisure. But at the same time, the types of use specified in your practice note for D2 (cinemas, concert halls, bingo halls) are quite detached from a caravan park. Is it a different use class that therefore applies to a caravan park, or is D2 the appropriate one?
I have a query about the Planning Committee Resolution: Grant Permission Subject to a Section 106 Agreement. I have been told there is caselaw that held the wording "subject to" is wrong and that the resolution should be to delegate to issue permission upon receipt of a satisfactory completed section 106. I have searched the commentary to section 106 of the Town and Country Planning Act 1990 and researched further, but cannot find the caselaw that provides authority for this.
What is the difference between a mixed use and two separate planning units? I am considering a CLEUD for two flats above a building society. They will share a back door, hall and staircase only. I need to be clear whether that is enough to constitute a mixed use and benefit from permitted development.
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?
I note that under section 206(1) TCPA 1990 a landowner is under a duty to replace a tree which is removed in contravention of a TPO and that the duty also applies if the tree is removed because it is dead. If this duty is not complied with, the local planning authority can serve a tree replacement notice on the landowner. Does a local planning authority have any powers to force a landowner to replace dead trees if the landlowners has taken no action to remove them?
I would be grateful if you could let me have your thoughts on the following planning issues: (1) Garage - under what use class is a garage (that does repairs to vehicles but does not sell petrol). I am assuming that this use would fall under class B2. Is this right ? (2) If the garage does sell petrol is that class B8 - storage and distribution. This doesn't seem to be quite right but the only other use class that might be relevant is A1 and that doesn't seem appropirate. (3) If a garage does repairs to vehicles and has a cafe/shop (mini supermarket) and also sells petrol would it be a mix of B2, A1 and maybe B8 (if I am right about storage distribution) or is it (as I suspect it is) a case of determining which of the uses is the predominant one?
Is it possible/permissible for a section 106 agreement to provide that payment of a financial sum be made to a person or body other than the "authority", as defined by the Act? For example, can the section 106 agreement include an obligation to pay a sum of money directly to a private landowner?
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?
If there has been an application to change the use of a property from retail (class A1) to restaurant (class A3) that has been approved by the council, do you need to make a further application to the council to change the use back to retail (A1) from restaurant (A3), or can you revert back without an application?
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?
A property was granted planning consent for a change of use from offices to A1 retail. For the last 15 years (approximately) the property has been used as an opticians and we have been told that it now has an established use as an opticians and planning consent for change of use is required back to A1. Are there any circumstances in which a tenant wishing to use the property for retail purposes could rely on the original consent granted?
Under the Town and Country Planning (Use Classes) Orders of 1987 and 1995 please confirm that no planning consent is required to change use to a retail betting shop (Use Class A2) from the current use of a restaurant (Use Class A3)?
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?
I understand that permitted developments are caught by a community infrastructure levy (CIL) under regulation 5(1)(g) of the CIL Regulations 2010 but that normally a change of use will not attract any CIL as it doesn't involve any new buildings being created. However, what if the office building to be converted has been empty for the last 12 months? From reading CIL it seems that this building would be treated as chargeable space and CIL could be payable but please confirm your view.
Does Practical Law have guidance on factors that will be taken into account by the Council when objecting to neighbours proposed change of class from a class C1 to C3 with self contained units within a single dwelling?
With the reduction in the judicial review time limit to 6 weeks, after 6 weeks from the date of grant of a planning permission (granted after July this year) is it now free from all challenges (call in etc)?
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?
In a conveyancing transaction, the local authority searches revealed that a breach of condition notice had been served on the landlord and possibly tenants of the leasehold property our client is proposing to purchase. The breach of condition notice was served about 3 weeks ago. The notice in this case concerns a failure to provide enclosures and screened facilities for the storage of recycling containers and refuse containers. This was one of the conditions on which planning permission was granted to divide the original property into a number of flats, one of which our client wishes to buy. The sellers state (through their solicitors) that the landlord is taking steps to rectify the breach. Please would you explain: 1. The potential consequences for our client if he purchases one of the flats before this notice has been removed as a charge from the Local Authority records. 2. Is it the case that we will need written confirmation from the Local Authority that the breach has been resolved before our client can safely (in respect of the breach at least) proceed to purchase the property?
I have a client who is taking a unit on a retail park as a sports store. The planning permission has the effect that only one unit can be used as a sports store. That's fine in that there are no other sports stores there at present. I have attempted to put a landlord's covenant in the lease saying they won't let to another tenant who will be relying on the exception in the planning that allows one sports store. I am genuinely not trying to do this from a non-competition point of view but from a "I don't want to be in breach of planning point of view". The landlord's solicitor has responded back that if a second tenant opens a sports store the council will enforce against them. I have looked on PLC and elsewhere and cannot see any authority for this. My instinct and reading of section 187A of the Planning Act 1990 is that they can enforce against either. I also wondered if they could enforce against the landlord?
A local planning authority (LPA) has refused planning permission at first instance, at a time when CIL would not have been payable. An appeal against the decision has been successful, and planning permission has been granted at a time when CIL is in force. Is CIL payable, or can the applicant claim relief?
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?
Our client is entering into a commercial lease of premises to be used as a retail charity shop. The premises were previously occupied by a large coffee chain, who occupied on the basis of a "sui generis" planning permission authorising a change of use "from class A2 to mixed class A1/A3 (sui generis)". The question is this: would a new tenant wishing to occupy for A1 retail purposes only need planning permission for a change of use to class A1? The existing mixed A1/A3 planning permission is sui generis, which means that the general permitted development order cannot apply to authorise a change of use to A1 alone. Does the existing mixed use permission mean that the premises MUST be used for the mixed A1/A3 use, and cannot be used solely for one of those uses without planning permission?
I have read the guidance on advertisement prosecutions and note that an offence under section 224(3) of the Town and Country Planning Act 1990 is summary only therefore has a time limit of 6 months. When however does that 6 months run from? When the advertisement is first noticed or after the refusal of the person to take the advertisement down?
I have a client who is purchasing a property. The vendor has confirmed that they converted a garage into an office and one of the bedrooms into a bathroom stating that neither conversion required planning or building regulations consent. They said both would have been permitted developments at the time circa 2007. They have stated that even though building regulation may have been required given the lapse of time no enforcement action could be taken. I would be grateful if you could confirm if their interpretation is correct?
Where a property has been used as a retail shop for in excess of 20 years and so the Local Authoirty could not take enforcement action against use class A1 would this also apply where the property is to be used as a referral service for training and education? This referral service may fall within A2 and we understand a change btween A1 and A2 would need planning consent. Our concern is whether the referral service would be regarded as requiring consent for A2?
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?
A client is about to take a lease of a property to be used as a shop. From a planning search, the property used to be permitted for A1 use but this changed to A2 use approximately 5 years ago. The local authority has stated that a fresh application will not be necessary and that the property can be used as the previous use (A1) without any further change of use application. Does the A2 planning permission affect the previous A1 use?
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?
My client purchased a plot of land to the rear of her residential property in 2005. The permitted use for the plot of land was originally agricultural however change of use to residential was obtained by the seller prior to completion of my client's purchase. The property has been used for residential purposes since 2005. It has transpired that there is a small slither of land between the original boundary of the house and the garden extension which would not appear to have formed part of the land the subject of the change of use permission. Will my client be able to rely on the four year rule contained within section 171B(1) of the Town and Country Planning Act 1990 (TCPA 1990) or does this relate purely to buildings? If my client is not able to rely on this could the change of use be permitted under section 55(2)(d) of the TCPA 1990 on the basis it is a use incidental to the enjoyment of a dwelling house?
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?
There is a situation where a council is the local planning authority and also the owner of land which is the subject of an agreed developer application for planning permission. What is the best approach for a council to take - is it the freehold sale of the land to the developer subject to a covenant requiring the deveioper to complete the section 106 agreement? The difficulty being that a council as landowner cannot enter into an agreement with itself as a planning authority.
The Technical Guidance for Permitted Development for householders gives the description of a terraced property as follows: ‘terrace house’ means a dwellinghouse situated in a row of three or more dwellinghouses used or designed for use as single dwellings, where: (a) it shares a party wall with, or has a main wall adjoining the main wall of, the dwellinghouse on either side or (b) if it is at the end of a row, it shares a party wall with or has a main wall adjoining the main wall of a dwellinghouse which fulfils the requirements of sub-paragraph (a). Is there a legal definition of a semi-detached and detached property?
How do you deal with a request from Building Control which if complied with will potentially breach planning? A client has been sleeping in an ‘office’ in his barn/stables. He recently received a visit from Building Control & a planning officer following a complaint from a member of the public. The planning officer was there to establish whether there had been a breach of planning and the Building Control to do an inspection. The client has heard nothing further from the planning officer, but the Building Control officer has requested that he installs a bathroom in order to comply with Part G of Building Regulations. He also has to do some work for fire regulations. If the client goes ahead and installs a bathroom in the ‘office’ then that will change the character of the ‘office’ to that of a dwelling and therefore would be classed as a material change of use under Section 55(3) of the TCPA 1990 and therefore require planning permission. The building control notice has given him 28 days to comply. Is it possible to appeal against the notice on the grounds that to do so would breach planning and potentially lead to planning enforcement?
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?
We are acting for a Landlord and looking to grant a new lease to an estate agent. They have been using the property concerned as A2 use, but the current lease only allows A1 use. They would like us to ensure that the new lease allows A2 use, but do not want to contact the Local Authority. They are happy to have an indemnity clause in the lease for the Landlord. What we would like to know is, if our client were to grant such a lease, what action could the Local Authority potentially take against the Landlord? Moreover, what is the potential exposure for the Landlord?
My question relates to the modification/discharge of affordable housing requirements in planning obligations. The Growth and Infrastructure Act 2013 ("GIA 2013") inserted Section 106BA into the Town and Country Planning Act 1990. Subsection(6)(a) provides that a determination under subsection (5)(a) (b) or (c) may provide for the planning obligation to be modified in accordance with the application or in some other way. Does the 'determination' (i.e. the decision notice) effectively act to modify the planning obligation OR should the determination make it clear that a deed of variation will be required? The reference to 'to be modified' in subsection (6)(a) could suggest that modification requires further action i.e. the entering of a Deed of Variation. Alternatively, subsection (10) would seem to suggest that the decision letter acts to modify the planning obligation in question as it refers to 'the obligation as modified is to be enforceable as if it had been entered into on the date on which notice of the determination was given'.If the decision notice does act to modify the planning obligation, it would presumably have to ensure it clearly specifies the clauses which are no longer applicable. I have considered your practice notes on planning obligations and the GIA 2013 together with the associated DCLG guidance but would appreciate your views on this issue.
My client (a local authority) is looking to carry out some works on a property in order to comply with a 215 notice. Works have been carried out to clear the garden, half of which has been paid. The remaining work will cost a substantial amount. The powers that be are a bit jittery about how we will recoup this amount. I was asked to check with yourselves as to the criteria to force a sale if it came to it to recoup my client's costs.
I was wondering if there is a prescribed/standardised form for Decision Notices in the regulations or elsewhere? We have looked at the TCP (GDP) Order 1995 onwards and although we can see various regulations that it must include reasons for the decision etc, we haven't been able to locate a draft template. The query is as a result of the planning departments request to remove the signature of the head of Development Management service from the Decision Notice. It may be the answer lies in local government law and issues of transparency/accountability but I was surprised not to be able to find a standardised draft, especially as most Decision Notices look very similar.
We own a Grade II listed building. It has a substantial garden. We are thinking of putting a small garden shed in it. There is currently a small shed, put in the garden sometime in the 1970s/80s. Looking at the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 it would be permitted development. I cannot work out if listed building consent will be required. Part of me thinks not. Replacing the existing shed for example might be like for like but even if it is not like for like, the new shed is not attached to any listed building and is within the GPDO.
Please could you assist with a planning question? We have a client that has D1 for their premises as a dental practice. The client wishes to extend their opening hours (evenings and weekends) and hold 'study clubs' at the premises once monthly. The planning permission makes no mention of restricting the hours of use; therefore can the client simply extend their opening hours without having to notify the council? Would holding the study club meetings (and he wants to advertise) be a breach of planning? Or would the incidental use be permitted and the main use continues to be that of a dental practice. Thank you in advance for your assistance.
I have a query in relation to a planning permission which was granted and was given three years within which it had to be implemented. Within the three year period, the applicants applied for a variation of one of the conditions and this was also granted, giving them as standard 3 years within which to implement. The new permission which was a variation has not yet been implemented. As there have been complaints relating to the site, is there any way in which my client is able to argue that because the new consent hasn't yet been implemented, the original consent ( which has been implemented) still applies?This is looking at the possibility of taking enforcement action as the condition which was subsequently varied has not been complied with in the original consent. It seems that the answer would be no as the applicant has rightly been granted consent for the variation of a condition and been given 3 years for implemention. I think the key word here is implementation, as the consent states that the development must be implementated within 3 years under section 91 of the Town and Country Planning Act and does not state that it must be completed within this time period.
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?
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.
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?
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?
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?
What is required to obtain a Certificate of Lawful Existing Use (in this case residential) i.e. the exact period of continued use required to be demonstrated and what evidence is required to show this use. Are there any other requirements which need to be met?
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?
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?
I act for a purchaser of 10 residential properties. Under a section 106 agreement from 1996 it is a requirement that 2 of the residential properties are transferred to a housing association for the provision of affordable housing. This has not been done. The seller's solicitor is arguing that the local authority are barred under the Limitation Act from enforcing on the obligation due to there being more than 15 years that have elapsed since the properties were built but I seem to recall that the Affordable Housing legislation means that the Limitation Act cannot apply. Is there any guidance/comment you can offer?
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?
I'm looking at a unilateral undertaking where it has been agreed in principle that the contributions secured by the unilateral undertaking will be reassessed by the LPA from the point of view of the viability of the development scheme after a couple of years. Usually a viability assessment would entail the LPA acting reasonably. Since the LPA isn't a party I can't see how we can oblige them to act reasonably. Whether we can have an outcome linked to the LPA acting reasonably is unclear. Are there any authorities on whether it is possible to say in a unilateral undertaking that X will happen if party Y (the LPA) acts reasonably?
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?
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?
We have a situation where a section 106 was entered into, to provide contributions only, in respect of an area of land which has now had 4 individual properties built upon it. The developer had various monies transferred towards payment of these section 106 monies before he sold the properties and so some of the monies have been cleared (all were due before commencement). We requested the remainder of the monies from him which were paid, but then discovered that there was an admin error in the amount that was transferred and the developer was told that monies were outstanding. He advised at that time that there were no funds and so he could not make payments. Our standard section 106 at that time did not specify that the owner/developer would remain liable for any outstanding breaches once he had parted with possession. We are looking at recouping the monies and do not see that we can invoice the developer. Normally we would split this amount in 4 and invoice the individuals for a quarter each but if I am correct, they are jointly and severally liable for the entire amount? If that is so we were looking at writing to them initially and advising them of the full amount that is still outstanding and seeing if they have any indemnities or retentions or if not what their proposals are for payment. We accept an error was made but rectified virtually immediately and we had no enquiries from purchasers as to whether payment of the full section 106 monies had been made (w
Does the 10 year planning immunity rule apply once an enforcement notice has been served? A local search has revealed a planning enforcement notice from over 10 years ago. We have no information as to whether this notice has been complied with as it's not obvious from inspection and the seller is claiming ignorance / being unhelpful. My client is looking for a quick exchange and is not keen on paying for an indemnity policy if possible. Can we rely on the fact that it has been 10 years since the Enforcement Notice was served to be comfortable with the fact that the Council does not have any further recourse if it transpires that the Notice has not in fact been complied with? Are there any other matters in respect of the Notice that we need to consider?
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.
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?
For the purpose of section 215 of the Town and Country Planning Act 1990 could a management agent (i.e. appointed by the owner of the property to get tenants and maintain the property) be classed as an 'owner' or 'occupier'? We've served section 215 notices on the owner of the property and have not received a response. The property is currently vacant but is in the hands of a local property agent. Should the property agent be served or informed about the section 215 notice before prosecution or direct action is sought?
A developer wishes to apply for planning permission, but the water company has objected, on the grounds that the sewers do not have sufficient capacity. Although there are other options available, the water company is worried that, at some point in the future, successors in title may wish to use s.106 of the Water Industry Act, to require that the sewers be connected to the existing public sewer. It is therefore proposed to agree a planning condition, under which the developer agrees to include a provision in each plot transfer/lease removing the right of the purchaser to use s.106. My questions are: Is it possible to use a planning condition (or an obligation) to require that a restriction be entered onto the title? Is it possible to use a planning condition to remove rights under s.106, and can this right be excluded by a plot transfer? Are there any Human Rights implications?
Section 5(2) of the Community Infrastructure Levy Regulations 2010 carves out planning permissions for a limited period from CIL. Is there any guidance on what period of time would fall within "limited duration"?
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.
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?
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.
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.
Where can I find a definition of 'dwelling house'? Does a mobile home or residential caravan count as a dwelling house for planning law purposes? This is particularly in relation to the Town and Country Planning (General Permitted Development) Order 1995.
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?
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)?
When considering an option of obtaining a certificate of lawful use for land that has been used as residential for a number of years (in breach of agricultural use restriction), does PLC have any guidance on what evidence is required? Is it correct that two pieces of evidence per year including sworn affidavits from occupiers to cover a 10 year period of continued use necessary to gain planning consent in this way?
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?
Does the Planning Inspectorate (Wales) have a discretion to extend the time for filing an appeal? A listed building enforcement notice was served specifying an effective date, before which, any appeal to the Inspectorate had to be made. An appeal was submitted but not in the correct form for a listed building enforcement notice appeal. The Inspectorate afforded the recipient a further fortnight for an appeal to be submitted. Has the Inspectorate powers to do this? Is there a power under an Order or Regulation or is there any case law upon this point? The Inspectorate state the appelant indicated an intention to appeal before the deadline but cited no authority.
Is there any restriction on the display of certain flags (specifically the Union Jack and the European Community flag) in public? i.e. Is there any enforcement action which a local authority could/might take to prevent this? The flagpoles upon which they will be attached have been installed legally.
I am acting for a seller of a residential property. It is approximately 250 years old and is a listed building. When the seller purchased the property in 1996 he applied for and obtained planning permission for "change of use from residential to guest house". He used the property as a guest house as well as his main residence until five years ago since when it has been used exclusively as his private residence. The property has been sold to someone who wishes to occupy it as a private residence (not as a guest house). Is there any need to obtain a further change of use back to residential from guest house? I would appreciate your view.
In a sale of unregistered land if the completed transfer has not been registered due to the fault of the transferee can the local authority some six years later serve effective notices on the transferor as owner of the land, under the Town and Country Planning Act 1990, specifically s.215, or for breach of planning control. The threatened action arises from acts on the land by the transferee. Consideration was paid and vacant possession given on completion of the transfer.
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.
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?
I am looking at a decision notice granting conditional planning permission. One of the conditions relates to the bin store (to the rear of the property). Development has not yet begun. If the bin store area was to be sold to a third party, would this invalidate the planning permission?
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 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?
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 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.
Please can we have your thoughts: the intention is that our client will purchase a house from a developer and then lease it back to the developer for use as a show home. In your view, would the intended use amounnt to a material change of use requiring planning permission? My feeling is that this is probably not a material change of use.
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?
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?
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?
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?
If a planning application has been granted subject to the signing of a section 106 agreement under the Town and Country Planning Act 1990 and due to protracted negotiations between the local planning authority and the applicant the signing of the section 106 agreement is delayed - can the applicant appeal to the Planning Inspectorate on the grounds of "non-determination"? If so, would the Planning Inspectorate then determine the planning obligations or would the section 106 agreement be sent back to the local planning authority to finalise?
We have noticed that your CIL clause in the Landowners Option Agreement only requires the Developer to submit an "Assumption of Liability Notice" but your CIL practice note refers to several other notices which must be served, such as a Chargeable Development Notice and a Commencement Notice. We assume that the responsibility on the developer to serve these other notices flows from their service of the Assumed Liability Notice and therefore we don’t need to worry about them because we have an indemnity regarding CIL expenses, is this correct? Also does the drafting on CIL need to say "if any" as the CIL has not yet been adopted by most Authorities?
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.
In drafting an Agreement under section 106 of the Town and Country Planning Act 1990 (as amended) should the conditions, subject to which any planning consent will be granted, be attached to or included in the 106 Agreement?
Planning permission has been granted for the erection of a three storey development of one retail shop and 6 flats on land where a house is currently situated. Although no conditions are specified regarding demolition the house obviously has to be demolished in order to build the development. In order to purportedly execute the permission within the time limit the Applicant has demolished a porch (of substantial construction) to the side of the house. In addition there are pre-commencement conditions regarding submission and approval by the LPA of a Land Contamination Appraisal, a full acoustic report and details of cycle storage. None of these conditions have been complied with. Having looked at this I am unsure whether the demolition of a porch would constitute commencement of development in these circumstances and I would appreciate any advice on the matter.
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).
Section 88 of the Planning (Listed Buildings and Conservation Areas) Act 1990 enables any person authorised in writing by the Secretary of State or the local planning authority to enter land for a wide range of purposes, including in connection with a proposal to serve a repair notice under Section 48 of the 1990 Act. I understand that Section 88 applies to local authority officers and outside individuals engaged in a professional or advisory capacity and that Section 88(5) specifically provides rights of entry for the purposes of valuation. Under Section 48 if the building is not repaired within two months, the local planning authority may then serve a compulsory purchase order under Section 47 and, if the order is confirmed by the Secretary of State, proceed to acquire the building in accordance with the Acquisition of Land Act 1981. Could section 88(5) be used by a developer (as agent for the local planning authority) to enter a building for the purposes of valuation if that developer proposes to enter into a "back to back" deal with the local planning authority to purchase the building on completion of a compulsory purchase?