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?
I am struggling to find any evidence for the proposition (as stated in various local authority publications and also in English Heritage Guidance) that the Law of Property Act 1925 allows a local authority with a debt on a property to register the debt as a local land charge. I am interested specifically in the position with Urgent Works Notice under section 54 of the Planning (Listed Buildings etc) Act 1990. Once works have been carried out in default by the local authority, then section 55 allows the local authority to serve a notice on the owner of the property for recovery of the expenses. There is nothing expressly in the 1990 Act which states that the sums then due are a local land charge or recoverable as against successors in title. Presumably a fresh section 55 notice would need to be served if the property was sold. I am therefore unclear as to how a local land charge would arise in this case. The 1990 Act would appear to suggest that the sums due do not bind the property or successive owners (and a fresh section 55 notice would need to be served in respect of continuing expenses against subsequent owners). It follows that a local authority cannot rely on section 1(1) of the Local Land Charges Act 1975 (LLCA) which states that a "charge or other matter affecting land" is a local land charge "if it is a charge binding on successive owners of the land affected" and section 1(2) LLCA which says that "any sum which is recoverable from successive owners of lan
Are firms that are CQS accredited required to use the most up-to-date Protocol forms? We are acting for a buyer of a commercial property that has planning permission for change of use to a residential dwelling. The seller's solicitors (who are CQS accredited) have sent us a completed Property Information Form and Fittings and Contents Form but both are the 2nd edition which I understand are now out of date.
Your practice note on stopping up orders under s.247 TCPA 1990 states that s.247 "permits the making of an order for the stopping up of a highway (with vehicular access)", however, this appears to conflict with the guidance in the Planning Encyclopedia which states that s.247 can also be used to stop up footpaths. Please can you clarify.
We have a client who is mortgaging a property that it owns. The title is subject to a covenant not to use for a dwellinghouse or dwellinghouses. The property is operated as a care home. No one is complaining that it is a breach of covenant but this firm is to provide a report on title to the bank. I haven't looked through lots of case law but my gut feeling is that since a care home is people's primary residence it will be a dwellinghouse.
These queries concern planning? What period of time does a local planning authority have to give for members of the public to comment / raise objections on a planning application? Does a local planning authority have to serve notice of an application by post on neighbours and if so, when?
I have come across a s.106 planning agreement, concluded in 2008. The recitals state that a planning permission had expired and the agreement was intended "to enable the Development to proceed whilst ensuring the Conditions are fully complied with". Whilst the obligations imposed seem to meet the usual requirements of s.106, the whole concept appears flawed. If the planning permission has expired - the Conditions were not met within the time specified - then how can a s.106 Agreement revive it? The Council say they will not take enforcement steps if the obligations in the agreement are complied with. This seems a strange way to use a planning agreement though it is not immediately obvious how that renders it invalid. In principle, can a planning agreement be used in this way, please?
An overage provision concerning planning, how can a seller ensure that they are notified if, as and when the buyer gets planning permission? Asides from physically checking/checking local authority's records?
The defintion of what triggers the payment of CIL and 'commencement of development' I have a query about circumstances wherein a proposed development to a listed building is granted planning permission, and the description of the scheme in the permission covers works which do not actually require full permission (i.e. internal alterations), but which have been included for the sake of seeking Listed Building Consent. Would those works which are included in the PP development description be considered 'development' for the sake of s.208(3) Planning Act 2008, i.e. sufficient to trigger liability to pay CIL?
Our client intends to build a tennis court on his land. The land adjoins a bridleway. Is it possible for the public to raise objections to our client's planning permission on the basis that the tennis court could cause an obstruction to the bridleway?
I act on behalf of a landowner who has obtained planning consent to develop previously undeveloped property. The land is accessed via a bridleway which has served this property as well as my clients adjacent property for many years. The bridleway is pre 1959 and as such I understand the surface is owned by and the responsibility of the local authority. There are different landowners on each side of the bridleway and in the absence of contrary evidence we assume they own the subsoil co-extensive with their property. We wish to install services in the bridleway to serve the development. From whom do we need consent?
Reg 6 of the Town and Country Planning (GPD) (Amendment) etc Order 2013 introduces a new Class J which permits change of use to C3 dwellinghouses from B1(a)offices. Para J1(b) disapplies this to any buildings not used for office use immediately prior to 30 May 2013, or if the building was not in use immediately before that date, when last in use. My client built a new office building many months ago, but despite best endeavours has not been able to let it. There has been some use of the building e.g. for marketing purposes which could be described as office use and they have clearly not built the premises with the intention securing an easy route to a residential permission- they simply cannot let them. As the intention seems to have been to allow 'unwanted' offices to be brought into use, this would appear to be type of case which the new regulations were intended to cover. Can they take advantage of Class J to convert to residential? Are you aware of any case law which considers what 'use' means in a similar context?
A property has an existing planning use of B1(a) and planning permission was recently granted for conversion to residential property subject to a section 106 agreement. With the introduction of the new Class J of the GPDO 2013, can the change of use proceed without needing to comply with the section 106 agreement (including the financial contribution)? I.e. the change is not the implementation of the recent planning permission, but the utilisation of the new use category.
The council own a site and have carried out a development of new build flats as part of a wider mixed use development. As part of the planning permission there is a condition that the residential accommodation shall not be occupied until a scheme for the provision of 5 affordable units has been approved by the local planning authority. The council is the local planning authority and so unable to enter into a planning obligation with itself to secure the affordable units at present. The council have agreed with a RSL to grant a long lease of the relevant flats and immediately on completion the RSL will enter into a s106 agreement to protect the affordable housing units. This is acceptable to the planner authority. The intention is that within the next 12 months a head lease is granted to a charitable trust to manage the whole development. I note from your practice notes that a s106 is binding on people who derive title from the parties to the s106. If the charitable trust has a title superior to the RSL, will they also be bound by the terms of the s106, and if not, how can we ensure we protect the future occupation of these units as affordable?
A request has been received by a registered provider (“RP”) to vary the terms of a Section 106 Agreement (“the section 106”) entered into pursuant to the 1990 Act. The section 106 included (inter alia) provisions relating to affordable housing and the RP wishes to seek changes to some of the section 106 provisions relating to affordable housing (the request is not based on economic viability grounds). The RP has enquired whether any deed to vary the section 106 can be entered into solely between the RP (as the owner of the affordable housing land as identified in the section 106) and the LPA. Section 106A(1) of the 1990 Act provides (inter alia) that a planning obligation may not be modified or discharged except by agreement between the appropriate authority and the person or persons against whom the obligation is enforceable. It could be construed that the section 106 is ‘enforceable’ against other parties (in addition to the RP) as the land bound by the section 106 included not only the affordable housing land but additional land and the section 106 related to matters other than affordable housing. Alternatively, could it be argued that as the RP only seeks variations to the affordable housing provisions and such aspects of the S106 would only be ‘enforceable' against the RP, then a variation could be made solely between the RP and the LPA. Guidance on the correct interpretation of section 106A(1) in this context would be appreciated.
Can a local authority serve an enforcement notice (pursuant to section 172 of the Town and Country Planning Act 1990) on the freeholder of the land where the planning permission has been personal to the leaseholder?
We have a client who owns an area of bare land, and we understand that planning permission has recently been granted for a property nearby. Our client has asked whether anything can be done to stop the development of the property. The Title Deeds appear to contain a right to light over the land, and we are wondering if our client could use the argument that the development would hinder / affect his right to light on the land in order to stop the development? We ask this question having seen evidence of case law under Dalton v Angus for their being no right to acquire a right to light over bare land. But, can this exist and stop the development if the right to light was expressley granted by a conveyance?
I note that your precedent overage covenant contains "Planning Permission" as the trigger for the additional payment. With the broadening of permitted development rights, do you think exercising a change of use under a permitted development would be caught by the covenant as drafted, or should the trigger event clause be re-drafted so that a Seller can also benefit from an overage payment where a Buyer enhances the value of land by exercising a permitted development right?
Your note on issues to consider where a property overhangs a public highway is very helpful. Do the same regulations apply where an owner of an existing building wants to install awnings overhanding a public pavement?
Planning permission has been granted for the erection of a house on a property next door to a clients. The client says that it will be a big intrusion on privacy. What options would be available to the client in order to try and quash the decision? Is there some other way to stop them from building on the land? I understand that planning appeals cannot be challenged once granted or at least, not without taking it to the High Court. But what would be the position if, for example, the Deeds had a covenant not to impede a right of light?
For the purposes of a Unilateral Undertaking in respect of s106 Town and Country Planning Act 1990, is a lease granted to the planning applicant by the landowner for a term of 6 years a sufficient legal interest in the land to enforce the terms of that undertaking against them?
I understand that no consent is required to revert to "normal" use when a temporary consent expires. What is the position where a landowner wishes to revert back to "normal" use before the temporary consent expires? If the temporary consent is a development order as defined by s.59 TCPA then s.57(3) arguably applies, but I cannot see that s.57(2) necessarily permits the resumption of "normal" use until the temporary consent is time expired.
A client is purchasing a property which was previously used for tens of year as a A1 retail use. The current owner who is occupying the premises have been using the premises as amusements Arcades which falls into the use of Sui-Generis without planning for 11 years. Would our client require specific planning consent to use the property again as A1 use?
We have a client who wishes to change the use of his agricultural building to A2 (financial and professional services). He ticks all the boxes. However he has been thinking for some time of lodging an application (prior to these new regulations) for A2 to enable him under the existing regulations (the Town & Country Planning) General Permitted Development (amendment) England Order 2005 to change from A2 to mixed A2 (financial and professional) and single flat uses other than a flat at ground floor level). The concern is that if he utilises the new regulations to move to A2 he falls into Class M and the use is then catergorised as sui generous rather than pure A2. Would this then preclude the client if he uses the new regulations from then moving to A2 mixed? If this anlaysis is right it would seem that he would be better to lodge a formal application for A2 so that he could then move into A2 mixed rather than using the new regime. In theory it would seem difficult for the Council to refuse an application for A2 under the old procedure if in fact there is an automatic right to A2 under the new regulations. What are your thoughts?
My client is buying a property in a conservation area. The seller confirms new windows and doors were installed to the front of the property over 4 years ago (2008) without planning permission or building regulations consent. Whilst the normal 4 year rule (in relation to immunity from planning enforcement action) and the 12 month rule (in relation to immunity from building regulations enforcement action) apply, for the avoidance of doubt, please could you clarify this includes immunity from criminal action in both cases.
My client is purchasing the unexpired term of a lease (approximately 6 years left to run). My client intends to carry out various internal fit out works to a property and consent has been applied to the landlord for the fit out works and potential new signage for the shop front. The property is within a conservation area (unlisted building). Am I correct in assuming that neither planning permission nor conservation area consent is required? My client does not intend to carry out any structural works which are prohibited under the lease in any event and so there will be no demolition as such. The client does not have a surveyor/agent and is not terribly sophisticated in this regard. Further clarification would be much appreciated.
A spouse’s rights of occupation may be brought to an end in by the death of either spouse or civil partner under section 31(8)(a) Family Law Act 1996. The Land Registry Practice Guide, LR Practice Guide 63 - Land Charges - Applications for registration, official search, office copy and cancellation, sets out the requirements for an application to cancel a land charge. In order to cancel a Class F land charge it is necessary to use a form K13, PLC - Form K13 - Application for cancellation of a Land Charge of Class F. Applications for cancellation will be rejected where the applicant's name shown on the application form does not match the name of the original chargee and no supporting evidence of devolution is lodged and there is no indication of the capacity in which the applicant is making the application. Unless the applicant is the person on whose behalf the registration was made and is entitled to the benefit of the entry, sufficient evidence of the title to apply for cancellation must be supplied. The nature of the evidence will depend on the facts of each case. I think that evidence of the death of the wife such as a certified copy of the death certificate should be sufficient evidence to the Land Charges Department that the entry should be cancelled.
I'm considering a planning application which was made (in error) on behalf of a company which had been dissolved prior to the application being made. There is a resolution to grant permission subject to a s.106 agreement being entered into. The error was only picked up after the resolution was made. Can the applicant's details be amended at this stage so the permission is issued in the correct names?
Where a Use is B1, B2 and B8 and it is suspected that there are retail sales being undertaken to the general public, will this, and at what stage will this constitute a breach of planning control? To what extent would retail sales be allowed in Use B8?
My clients have submitted an application for planning permission and have been told that they need to enter into a Unilateral Undertaking pursuant to section 106 TCPL 1990. Part of the land to which our client is the freeholder is occupied by a commercial tenant (shop) who is currently holding over on a 25 year LTA 1954 protected lease registered at the land registry. Are they required to enter into the Unilateral Undertaking? Legislation does not appear to be clear on this point.
Is the implication of Class A, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 that so long as one has any planning permission to redevelop the land, any demolition of a building would be permitted without compliance with the conditions listed in paragraph A2 and subject only to those matters listed in paragraph A1? For example, a permission granting consent for the demolition of an existing building and erection of 10 dwellings would permit development under the GPDO albeit that it may not implement the relevant consent.
On a review of a title of land in England I have come a across an Agreement that was granted in 1999 that purports to give a right (subject to the grant of a planning permission) to call for an easement over land. Is this competent?
Is there a procedure (other than judicial review where we are out of time) for asking a local authority to set aside a planning permission which we believe was granted pursuant to a misleading application?
A planning permission for an A2 use has a condition that restricts the hours of use. Permitted development rights are then exercised and the premises are used for an A1 use. What is the provision that means the A1 use is caught by the same hours of operation applied to the A2 use? Is it Article 3(4) of the GPDO, or does that provision relate only to conditions applied to planning permissions that exclude PD rights?
Apart from section 196A of the Town and Country Planning Act 1990, what other steps can a Local Authority take to secure entry to a premises for a planning enforcement matter? Can we apply to a magistrates' court for a warrant and what rights would this give is to force an entry?
A condition in a planning permission has been breached – the condition relates to non-occupancy of a chalet during the month of February in any year. It took some time to gather evidence re occupation of the chalet during February, and enforcement action is now being considered (possibly via an enforcement notice for failure to comply with a condition, as a Breach of Condition Notice could be more problematic). However, could enforcement action be supported as any breach would technically no longer be occurring since we are no longer in the month of February? It is noted that in certain circumstances an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on. However, the above situation may not support such enforcement action, and a view on the above would be appreciated.
Where a local authority in its capacity as landowner of neighbouring land has the benefit of a restrictive covenant saying that certain other land cannot be used for particular use(s) without its written consent and the same local authority then grants planning permission for the land to be used for one of those uses, can it be argued that the planning permission constitutes the written consent required pursuant to the restrictive covenant?
My question relates to a property which is 14 years old. Why does a client need to establish whether there is any outstanding obligations relating to a section 106 agreement? The section 106 agreement is dated 1996.
In our scenario a building regulations certificate of completion has not been issued as the building has not been built in accordance with the submitted plans (a lift has not been incorporated into the building). Would the fact that the lift has not been installed mean the building continues to be incomplete therefore leaving the owner open to enforcement action? The works were 'completed' over 4 years ago (albeit not in accordance with the plans).
As I understand it the government is going ahead with relaxing restrictions on home extensions under the Growth and Infrastructure Bill. Will this apply to properties in Conservation Areas and could you point me to the relevant clauses in the latest version of the Bill?
I am dealing with the purchase of a residential property, which was made subject to Agricultural Occupancy Conditions in 1978. The sellers solicitors are of the view that the tie has since been removed by a note on a decision notice relating to the property. If the AOC has been removed, would it be normal for the original 1978 Order to be revealed on the local search?
Planning permission was granted to convert a single dwelling into two four room maisonettes. The current owner has purchased the two leaseholds and the freehold. What Planning Permissions/ Building Regulation Certificates, if any, are required to convert the two maisonettes back to a single dwelling?
A lease on a unit of an industrial estate is to be used for office use. The landlord is insisting that the permitted use in the lease is defined as "light industrial factory, workshop and/or warehouse (with ancillary offices) within Class B1(b) and (c), B2 and Class B8 of the Town and Country Planning (Use Classes) Order 1987." Does my client need to apply for change of use planning permission to use as offices only?
My client has for two years been chasing a local authority for confirmation that works undertaken have discharged conditions on a planning permission. The conditions are modest - relating to matters such as painting railings and so forth. Notwithstanding numerous chaser letters and 'phone calls, the local authority has still not replied. My client is trying to sell the property and the prospective purchaser is claiming the purchase price should be lowered owing to the planning conditions. Would the property be deemed to be blighted owing to the local authority's inaction?
I have to advise on a planning permission where an appeal under section 78 against only one of two conditions was made. The condition in question was a time restriction making the permitted use temporary, and a second restriction against the number of units to be developed was not challenged. The inspector allowed the appeal and discharged the condition, adding at the same time a landscaping condition. I understand that if this had been a Section 73 application the permission would be regarded as entirely new so my client would be free of the second condition. What is the position under section 78 please? It is plain from the wording of the statute that the secretary of state has power to deal with the appeal as if the application had been made to him, but the decision letter makes no mention of the second condition restricting the number of units to be be developed. I take the view that in the absence of some indication in the decision letter that condition 2 was also being discharged, it remains in force, but I have not been able to find an authority directly on the point.
Is a unilateral undertaking appropriate in circumstances in which there are only financial contributions but these are payable if the Developer/Company (who are one of the same) achieve a certain profit by a given time? This isn't an overage arrangement in which the Council will take a proportion of the profits but simply that the profits act as the trigger for when the contributions become payable.
I have carried out a local search on a property which reveals two enforcement notices dated 1994 and 2002 respectively in respect of the unauthorised erection of iron railings at the front of the property. There is no evidence of compliance with the notice. Does an enforcement notice expire after a certain time? Can we argue that the Council can now be assumed to have impliedly consented to the railings?
Where a s106 Agreement imposes a covenant on land against a specified use and the Agreement is noted on the registered title for the land does the subsequent grant of planning permission permitting the specified use override the s106 Agreement so as to obviate the need for a Deed of Release of the covenant?
I have a client who is thinking of converting an annexe at her home for use as a holiday let. Currently it is rated as part of the main house, The main house has planning permission for use as a residential dwelling. I've advised the client that, as a first step, she should go and have a chat with her local planning officer to discuss her proposals and whether she may need to submit an application for a change of use of part of the property for business use. Although, under the Government's latest planning regime I wonder if this requirement (in these circumstances) might now be relaxed. Can you suggest if there are any other legal issues she might need to think about when creating a holiday let?
Please could you let me know if you are aware of a definition of "full planning permission" in English case-law? I am not aware of such a definition in legislation, although I note that "outline planning permission" is defined by section 92 of the Town and Country Planning Act 1990.
If a local authority rejects a planning application which is then reversed in court i.e. application is granted, can the indivdual who is now granted the planning permission sue the local authority? Is there a duty of care on the local authority to the individual?
Please could you confirm your understanding of financial conditions contained in unilateral undertakings. It is my understanding that, as these are protected as land charges, they run with the land and there is no time period for enforcement by the local authority in the event that the conditions are not discharged.
I act on behalf of an LPA Receiver. He proposes to apply for a planning permission for the site, in respect of which he has been appointed. The Local Authority require a S106 agreement. Is the Receiver an agent of the borrower or for the appointing bank in respect of the S106 agreement?
My question concerns the "unadoption" of highways and sewers. If a public highway is stopped up and therefore is no longer maintained at public expense, do the sewers/drains underneath such adopted highway also cease to be maintained by the relevant undertakers?
Do you have a precedent to assign the obligations under a section 38 Highways Act Agreement where part of a development site is being sold and the purchaser is agreeing to take on the obligations of the developer under the section 38 agreement (but is not acquiring ownership of the roadway). I am looking for a Deed of Assignment between the developer, the purchaser and the Council.
Former agricultural land was bought in the 1930s and works carried out at that time pursuant to its use as a cemetery (it has not been possible to acquire documents relating to the purchase or these works). Since then, only half of the land has been used as a cemetery, the rest has remained as open space. It established that it is not possible to abandon a planning permission that has been implemented (Pioneer). Is there any authority to support a similar assertion that it is not possible to abandon part of a planning permission? (Despite the fact that any 'planning permission' here would be deemed permission due to it pre-dating the 1948 Act.) In other words, is it possible to lose the right to develop the remainder of the site into a cemetery on the basis that it has not been developed as such in the previous 70+ years?
Local authorities have permitted development rights to put structures on land to enable them to carry out their functions. If somebody else is carrying out these functions on the local authority’s behalf, do they also have permitted development rights to put structures on land to enable them to carry out functions on the local authority’s behalf?
If A owns land within a conservation area and cuts down a tree without consent from the local authority, A then sells the land to B, can the local authority take action against B, if so, is there a time limit on taking action?
If we receive a petition in connection with a planning application, which is refused permission and subsequently goes to appeal, then under regulation 13(1)(a) of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009, a local authority is required to give notice of the appeal to "any person who made representations to the local planning authority about the application which has given rise to the appeal". That notice must also state that further representations may be sent to PINS within 6 weeks of the start date of the appeal . We would normally just give notice of the appeal to the petition organiser and leave it to him/her to notify those persons who signed the petition and that they can make further representations to PINS. Someone is claiming we should notify everyone who signed the petition. I suppose the question is - does the word "representation" mean the petition itself or each person who has signed it?
I have a general query re: unauthorised works and lack of listed buildings consent. If works were carried out to a Listed Building, is it possible to get retrospective Listed Buildings Consent? Would that retrospective consent a) remove any liablity attaching to the unauthorised works; or b) simply remove any future liability for the unauthorised works. Also - is it possible to get indemnity insurance against lack of listed buildings consent/unauthorised works?
My query regards section 106 agreements. I am dealing with a very simple 106 agreement in respect of a building plot for a single new dwelling. The planning application site plan includes (in the red edged area) an access way in third party ownership but which, by virtue of existing easements), will serve the remainder of the plot. The access way land represents less than 10% of the overall plot area. The Council are insisting on the owners of the accessway joining into the 106 agreement even though there will be no actual development on the accessway and they will not have any interest in the development on the remainder of the plot. I say that there is no need for them to join in as the Council will be adequately secured by virtue of the fact that the agreement will attach to the land on which the house itself will be built and the owners of that area are joining into the agreement. The agreement only deals with 1 obligation, i.e. a payment to be made when the house is first occupied. Hence, the owner of the house will become liable to pay as that part of the site will be bound by the s106 obligation. Section 106 itself makes it clear that the section 106 obligations can attach to any land, so even land that is not the subject of the planning application. I cannot see anything to suggest that all of the land that is the subject of the application has to be the subject of the 106 agreement. I appreciate that will often be desirable though. In this case though it s
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?
My client wants to purchase a factory site in a residential area. My searches have revealed that the last permission granted regarding the planning use of the site was in 1983 and is stated to be 'Change of use to Manufacture of Sausages'. Does this (pre use classes order) planning use automatically translate into a modern use class? Ie. is it correct that the permitted use for the site would be B1 light industrial?
Can you let me know if you have a contract for the assignment of a lease. The assignment will be conditional on the assignee getting planning permission. What would you suggest I use if you do not have a bespoke document?
I am wanting to change the use of an industrial unit from B8 to either B1 or B2 use I need to know the difference and whether or not I need planning permission or is the change to b1 a permitted change not needing planning permission? I know B8to B2 would need change of use.
I am reporting to a commercial tenant client on the terms of a new lease as drafted by the landlord. The permitted use is B1(a). Term of lease 10 years. Tenant is a commercial client. Please could you explain the following clause and offer some advice on its likely affect on the tenant? Is this a standard clause? 3. Tenant's Covenants 3.18 Planning and environmental (g) If the Tenant receives any compensation because of any restriction placed on the use of the Premises under the Planning Acts to pay to the Landlord a fair proportion of such compensation at the end of the Term otherwise than by expiration of the Term by effluxion of time. "Planning Acts" means "the consolidating Acts" as defined in the Planning (Consequential Provisions) Act 1990, the Planning and Compensation Act 1991, the Planning and Compulsory Purchase Act 2004 and any other legislation relating to town and country planning in force from time to time.
Your practice note on local land chares states that an Article 4 direction (removing permitted development rights) should be registered as a local land charge. Please could you give me the legal authority for this?
I act for a developer who has taken an option to purchase, on the grant of residential planning permission, for a fixed price. My client has agreed to sell part to a larger and better resourced developer intending to enter into a contract conditional upon the grant of residential planning permisssion again for a fixed price, exercising his option once the contract goes unconditional. We wouod rather not assign the option, but can we contract to sell a property that the seller does not (yet) own?
We are acting in a purchase of a freehold property which is a Grade II Listed property and was first listed on the 15th February 1979. Having checked the listing it does not appear that the property was ever inspected internally and there are no specific details given in relation to the extent of the property nor of the internal layout in the listing. In 2005 the vendors obtained Listed Building Consent to undertake some internal alterations, some of which included the demolition of internal walls and that of the lean-to porch. Consent was given by the Council and was made subject to two conditions and on the subsequent page attached to the consent sets out the reasons for the conditions. On this page (in our opinion outside of the conditions) reference is made to Section 8(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the effect of the Act is that where demolition is involved it may not be undertaken until notice of the proposal has been given to the English Heritage Architectural Investigation Section. It appears that at the time the works were undertaken, the above requirement was overlooked. Having investigated the matter we cannot determine what action, if any, the English Heritage could take or the period of enforcement for such action. Are you able to assist?
I act for an individual (a father) (F) who prior to October 1986 owned unoccupied waste land in freehold being a potential development site. In 1986 the father on a whim transferred the freehold to the son (S) by legal transfer. The freehold was registered in S's sole name in 1986 in whom it remains. The land now has huge development potential. F (though absent) has continued to exercise acts of ownwership over the land including applying for planning permission. It was always intended between F and S that F would have beneficial ownership of the land. To confirm the verbal agreement between F and S that F would always have beneficial ownwership F and S signed a home made agreement dated May 1999 whereby "S agreed to forfeit any rights and interest in the freehold and is in agreement with the transfer of the freehold to F". The problem is legal transfer of the freehold never took place. QUESTION: (1) can the written agreement still take place as an agreement to surrender in its own right? (2) Or does the Limitation Act 1980 necessarily make it enforceable as it is over 6 years old? (3) If 2 applies is there any other potential remedy for F such as an equitable one or adverse possession?
If a property has been used as a retail premises for over 30 years but there has never been any planning permission for this use do you have to get a certificate of lawfulness or is there another option?
Do councils have any limitations on what they may ask a developer for as a planning obligation? We have client developers who are being asked to pay the council 20 per cent of the profit they make on selling houses on a development, but our clients say that this is not feasible as that would take away their entire profit margin. Is there any limit on a council's powers in these instances?
On an outline planning application can contributions to highway / open space etc be addressed by way of a planning condition as opposed to a section 106 agreement? Can planning conditions be attached to an outline application requiring a financial contribution which would allow a section 106 to be entered into at a reserved matter application stage?
I have received a request from a third party developer's solicitor to see a copy of the section 106 agreement that is currently being negotiated with a landowner. The third party developer does not have an interest in the Site but has obtained permission on the adjoining land. They have asked for the document on the basis that they want to ensure that they are not in a worse position in terms of having to provide additional obligations re infrastucture as a result of the development anticipated on the land. The solicitor states that the developer has a right to see the draft section 106 as we, the LPA, are "obliged to publicise the terms of draft agreement on the planning register under section 188 and also to give developers to opportunity to comment on agreements that affect their developments". The solicitor has been provided with the officers report and minutes setting out the heads of terms. I can understand why they want to see it but I can also see why the land owner may not want interference in the detail when the heads of terms have been settled and made public. Third party involvement would ultimately lead to higher legal costs in negotiating and drafting if not higher obligations. It would appear to me that the developer had their official chance to comment when the matter went to planning Committee to be determined. That said I can not see that the Council would necessarily object if the landowner was willing to provide a copy to the adjoining developer
Can you confirm whether planning permission is required to lay a cable for the electricity supply to a development? The cable crosses third party land. My client is engaged in carrying out some of the works for the development that will need this access for electricity across third party land, including digging the trench for the cabling and laying the cabling. We are concerned as the planning permission for the development itself does not appear to also cover the cable route. The third party landowner has consented with appropriate easements in place. We understand that the electricity company will eventually require a wayleave before adoption.
My client has a property where outline planning was granted for three dwellings. Having reviewed the permission, there is no condition as to when reserved matters should be applied for neither is there a long stop date for commencement of development. My question is whether that allows my client to apply for reserved matters outside the usual 3 year period or is there a statutory requirement that would frustrate this?
We act for clients who own two yew trees adjacent to their driveway, over which their neighbour has a right of way. Our clients' neighbour is requesting that our clients lop the trees to ensure that high-sided vehicles can gain access to her property, which is being renovated. Our clients claim that the trees do not restrict access for high-sided vehicles, however their neighbour maintains that the trees may need to be lopped should a high-sided vehicle need to gain access in the future. The trees are protected by way of a TPO. Do our clients have an obligation to lop the trees to increase/maintain the height of the right of way? Or do their obligations simply extend to not obstructing their neighbours right of way over the driveway in general?
Do compensation rights apply where permitted development rights are withdrawn by way of article 4 direction? We have an owner of an unoccupied public house who wishes to change the use to that of an office. The Council is considering making an article 4 direction under the emergency procedure and I have looked at the Town and Country Planning (Compensation) (England) Regulations 2012.
Is a section 104 Agreement personal to the original covenanting parties? I have a s.104 agreement which states that the agreement is personal to the parties - which seems contrary to s.104(5) WIA 1991. The Adoption of Sewers note states that the agreement is enforceable by the owner or occupier of any premises served by the sewer. Does this mean that the buyer of the land (who wasn't party to the s.104) can try and enforce against the undertaker to call in the bond to do the works so that a vesting certificate can be issued and the sewer adopted?
There have been rumours that compulsory affordable home allocation will be watered down to encourage developers to build. Having done quite a bit of reading I am still unsure which is the relevant statute or regulation that applies at present. Also, I haven't been very successful in finding which changes have been mooted and when they might come into force.
Is planning permission required to convert a non self-contained flat to a self-contained flat? In the transaction in question there is evidence that there have been 5 separate units of residential accommodation in the block since at least 1998 and some of those are not self-contained. The intention is now to convert all of the flats so that they are self-contained. I am told that the alterations required are only internal and there will be no extension or other enlargement to the block.
Please can you tell me what use class under the 1972 Use Classes Order would the sale of hot take away food come under? Planning permission for use as a restaurant is in existence but this was granted prior to the 1987 Use Classes Order.
Where a developer submits an Assumption of Liability Notice under CIL for land they do not own, what is the procedure to ensure they have no CIL liability if they (a) do not purchase the site but have obtained planning permission or (b) acquire the site and then sell it on before commencement of development?
Our client attended the planning meeting to object. He was told in advance of the meeting that he would have six minutes to speak to outline his concerns. He was then told just before the meeting that he would have only three minutes. Are there any grounds for challenging the decision of the planning authority?
Would a local authority (LA1) be entitled to serve a purchase notice under s137 Town & Country Planning Act on another local authority (LA2) where LA2 as local planning authority has designated in its LDF land in LA1's ownership for use as public open space, the provision of which is a responsibility of LA2? The land in question was a school playing field. The school relocated a few years ago and a new playing field was provided since when the field has not been used. LA1 would argue that the land is no longer of beneficial use in its existing state as there is no longer a need for a school playing field at that location but LA2 may well argue that it is is capable of use as public open space in its current state.
I am looking for the DCLG confirmation that children's homes would be included under the amended C3 that you refer to in Legal update, Amendments made to planning use classes with effect from April 2010?.
I have a situation where planning permission was obtained by a developer on Council owned land and one of the conditions was that a section 278 agreement in relation to highway works be entered into prior to the commencement of the development. The developer will be implementing the planning permission on behalf of the Council and will therefore need to enter into the section 278 agreement. I have not previously dealt with these agreements but whilst I understand that this is an unusual situation I can see no reason why our standard document cannot be adapted and used as I understand that the only requirement for a section 278 is that the HA are satisfied that the works will be of benefit to the public. From my interpretation that does not require any land ownership or planning permission to have been granted and that appears to merely be background in our documentation.
My client has acquired land from the local authority and for the purposes of the development part of a road has been stopped up under section 247 of the TCPA 1990 to enable the laying of services. Should I apply for registration to avoid any queries in the future? The Order is specific as it refers specifically to my client and the relevant planning permission.
My clients is purchasing a site conditional on planning but also conditional on (i) satisfactory environmental, (ii) services, (iii) soil and geotechnical survey and (iv) licensing condition. do you have any precedent conditional clauses dealing with these? i can only find a planning condition on the system.
I act for a client who sold land to the Council a number of years ago after he was threatened with CPO proceedings if he did not sell the land voluntarily. This was on the basis that the land was needed to upgrade the adjoining road to a dual carriageway. This work has not been carried out and there are no current proposals or need for the road to be widened. My client would probably have a valid claim under the Crichel Down rules if the council intended to sell the land. Does he have any power to force the council to sell as it has not been used for the purpose which triggered the threat of the CPO?
There is deemed consent under the GDPO to change use from A2 to A1. But is consent then needed to change back from A1 to A2? At what stage is the deemed consent for change from A2 to A1 actually implemented? When the shop commences trading?
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?
If a public right of way is not on the definitive map but has been there for more than 20 years and is interrupted for 3 years, does that mean the public right falls away? What sort of obstacles count as an interruption to the right of way? For instance, do tables and chairs permanently placed outside a building constitute an interruption?
We are acting for a landed estate which has secured planning permission for the erection of some houses in a village, the majority of which is owned by the estate. Although the houses will be sold, the estate wishes to control certain issues such as extensions external colour of woodwork and parking. The estate planned to dispose of the houses by way of long lease to simplify the control mechanism, and to provide for a reversion of the houses to the estate in due course. Given the rights of owners of long leasehold houses to acquire the freehold, this route and structure is likely to prove unacceptable and so we may revert to a freehold sale with restrictive covenants enforceable as such, and other covenants enforceable via an obligation to enter into a direct covenant with the estate. As the leaseholders right to acquire a freehold cannot be contracted away, we can see no alternative. Do you have any suggestions which might help the estate retain the freehold ?
I understand that under the transitional provisions contained in the CIL Regulations 2012, if a permission (which presumably includes an outline permission) has been granted before a charging schedule comes into effect for a particular area, then the permission is exempt from CIL. However, what is the position in relation to an outline permission which permits the development to be implemented in phases? I note that where you have such a permission, each phase of the development is treated as a separate “chargeable development” (reg 9(4) CIL Regs 2010).
A house was purchased over a year ago. A company owned adjacent land to the plot had planning permission to build 30 houses. They have subsequently gone in to Administration. Subsequently a new company has acquired the land and have submitted planning permission to build 52 council houses. I’m wondering if you have a practice note setting out the best process as well as some “legitimate” reasons to object. I can’t find any general practice notes.
If an enforcement notice is served for breach of condition, can an application for the variation/removal of that condition (ie s73 app) be made? Is there a specific prohibition on subverting the enforcement notice this way?
In submitting an application for a development site for land which is subject to a wayleave agreement in favour of ‘A’. Is the applicant under an obligation to serve notice of the application on ‘A’ where ‘A’ is not a freehold owner or a body with a long leasehold interest. If the applicant is not required to serve a notice on ‘A’, should the local authority serve such a notice? My understanding is that a notice should be served on owners of land, owners being defined as a body with a freehold interest or a leasehold interest which has an expired term of not less than 7 years. Therefore the applicant is under no obligation to serve a notice. In summary, where ‘A’ is not an owner are they still entitled to be served a notice and who is responsible for serving such notice?
I am acting for a prospective purchaser of land that I have now discovered forms part of a village green registered under the Commons Registration Act 1965. The piece of land being acquired has had a building on it for many years and the building was certainly there prior to registration. The land is being sold with the benefit of a planning permission. The site is subject to a section 106 obligation to maintain the garden area in keeping with the green and, effectively, not to place or grow anything within the curtilage of the site. Your Practice note, Common and town and village greens indicates that where land is registered as a village green it cannot by virtue of the 'Victorian Acts' be developed. Other than the planning permission there are no other consents to the proposed development. My question is, can my client, if it purchases the site, safely proceed with the permitted development pursuant to the existing planning permission and that such development will not be deemed a criminal offence under the relevant legislation?
My client's property had B8 use. A tenant was granted B1 use, personal to it. The tenant has now left and the planning authority have said that the property no longer has B1 or B8 use and that planning consent needs to be applied for for any use. That sounds very odd to me as I would have thought that the permitted use would revert to B8. Is there any authority that this is correct?
Could you tell me if there is any relationship between the grant of planning permission and the making of a TRO? It seems that many of the issues required by the TRO consultation process have already been considered in the planning consultation and by the same bodies who must be consulted. Is it possible for a request for TRO to be turned down following objections raised by the public in consultation, on an issue which has already been considered in a planning consultation and given approval?
Under the 'definition: contribution' notes section of your Standard document, Unilateral undertaking under section 106 of the Town and Country Planning Act 1990 it first states that as the Council is not a party to unilateral undertaking an obligation cannot be imposed upon the Council to repay any money under the undertaking. However the next paragraph refers to the case of Millgate Developments Ltd v Wokingham Borough Council  EWHC 6 (Admin) where the High Court held that section 111 of the Local Government Act 1972 allows a Council to reimburse surplus sums paid to it by a developer pursuant to an undertaking. I'm a little confused. Can the Council be obliged to repay monies received under a unilateral undertaking if they are not used within (for example) 10 years please?
I'm currently dealing with a section 106 agreement. The developer currently does not have a mortgage. If the developer at some point in the future obtained finance and a charge was put on the land in favour of the chargee would the chargee become liable under the section 106 agreement as a "successor in title" to the developer please?
I have seen reference in a PLC resource today that it is not possible to grant a planning permission subject to a condition that a section 106 Agreement be entered into. The authority for that appears to be para 13 Circular 11/95. However I've found an opinion by counsel (James Pereira ) on the net that this is incorrect at law as the power to impose conditions is wide enough. I notice also that the website of Sefton Council does envisage this scenario. Usually the 106 is completed before but can it be required subsequently as a condition of a permission before development commences. Also what is the position in Wales?
I have been advised that the Newland v Secretary of State for Communities and Local Government, Waverley Borough Council case establishes that the 4 year immunity from enforcement rule regarding change of use of a building to use as a single dwelling house applies not exclusively to the building but also to e.g. surrounding land used as domestic garden land. It has been argued that this also means that where an authorised and established dwelling house has enclosed adjacent agricultural land and used it as garden land the period required for immunity from enforcement to accrue under section 71B TCPA 1990 C.8 would be 4 years rather than the 10 years which one might expect. This seems to me to be something of a stretching of the Newland judgement and potentially distinguishable on the grounds that the Newland judgement was involved with a change of use of a building to use as a single dwelling house, whereas in the situation argued, there has been no change of use of a building only a change of use of agricultural land to use as garden land. I guess my question has to be whether you can direct me to any cases following or distinguishing, Newland particularly any cases where an established and lawfully authorised dwelling subsequently enclosed land adjacent to the authorised garden and then the 4 year rule was found to apply instead of the ten.
I want to make an application for a certificate of lawful existing use (CLEUD) for my client. I am aware, that 10 years uninterrupted use must be present. To what extent does an 'interruption' affect the 10 year rule when applying? The business proprietor in this case has died and the business is not currently continuing.
Section 78(A) of the Town and Country Planning Act 1990 says, in essence, that if a person has applied for planning permission and the LPA fail to give notice of their decision and the Applicant appeals for non-determination, the LPA may still make a decision and notify the Applicant of their decision "at any time before the end of the additional period". S.78(A)(6)states that the Additional Period is "the period prescribed by development order" starting on the day on which the person appeals but I cannot find anywhere where it actually says what the additional/prescribed period is. I have consulted Town and Country Planning (Development Management Procedure) (England) Order 2010/2184 taking this to be the "development order" referred to but time periods there seem only to refer to limits within which appeals must be made and not to any additional periods. If you can tell me where it says what the period is I would be very grateful.
My client is buying a block of flats which was converted in the past from a large house. Retrospective planning consent was granted in 2002 for the use of the property as "9 self-contained flats". However, the seller apparently subseqauently merged four of the flats into 2, therefore there are currently 7 self-contained flats. Do you think that the 2002 consent is still valid, or should a further consent have been obtained before merging the four flats?
Can a landowner be forced by the Local Highway Authority to divert a public highway across their land? By way of background, there is a privately owned boundary road alongside a public highway. It transpires that the private road was built over part of the original Public Right of Way back in the 60's (although we are unable to determine whether the road or the path was in existence first). There are currently a number of obstructions (such as a sign and a kissing gate) along the Public Right of Way and following a complaint from a member of the public (about the obstructions), the Local Authority have requested that the pathway is diverted across the private land to avoid the obstructions (and the landowner to meet the cost of doing so). The landowner does not want to do this.
I have a commercial client who is proposing to take a tenancy of a commercial premises. The premises were used as class B1 offices, but have been vacant for nearly a year. In the interim a proposed new tenant applied, and was granted planning permission for a change of use from class B1 offices to class D1. The planning permission/change of use was never implemented and a tenancy was never taken. My question is, if my client wishes to take a tenancy of the premises, will they need to apply for planning permission to change the use of the premises back to Class B1 offices?
I am acting for a client who has recently exchanged on a property. This property was originally a childrens home however planning permission for offices was granted in the late 80s conditional on the offices being occupied by Social Services. Now social services have left the property, my client needs to know whether the use is residential, or office. Also, why this is and if their are any ways the change it.
I am acting on purchase of a completed development (11 residential units) from receivers so very little information is available from the Sellers. The highways search has revealed that the roads are not adopted but there are express rights to use these so there are no access issues. The Local Authority Search has revealed an Advance Payment Code Notice which required the developer to pay 250k. The roads have clearly been constructed but the Council has confirmed that they remain unadopted. They have also confirmed that a section 38 agreement is in negotiation but that the Coucnil is not in a position to consider completing this at present. The Council have also confirmed that no monies have been paid and no bond has been entered into in connection with the Advance Payments Code Notice (which seems a somewhat after the fact given the roads have been built). My question is whether as buyer of a property my client will inherit any liabilities under the Advance Payment Code Notice?
Can s73 of the Town and Country Planning Act 1990 be used to vary a planning condition, when the planning permission in question (i.e. to be varied) was granted by a Planning Inspector on appeal? If the section can be used but you have to get Planning Inspector's consent - what is the mechanism for getting such approval?
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?
A business running an MOT testing station and a workshop doing car repairs would appear to come within B1(c) of the use classes order. If they want to sell cars from the same site will they need planning permission? The sale and display of motor vehicles comes within the Sui Generis class. If they are just selling the odd car or two at any one time would this come within any de minimis principle?
My query relates to disposal of open space (not designated as public open space) by a local authority. The definition of “open space” applied to disposals under section 123 Local Government Act 1972 is “land laid out as a public garden or used for the purposes of public recreation or land which is a disused burial ground” (as defined in section 336(1) of the Town & Country Planning Act 1990). The National Planning Policy Framework however adopts a much wider definition which includes “all open space of public value, including not just land, but also areas of water (such as rivers, canals, lakes and reservoirs) which offer important opportunities for sport and recreation and can act as a visual amenity” and “derelict open land” is included in the examples of open space which may be of public value. I would be grateful for any guidance on the extent to which local authorities are bound by this planning guidance when disposing of open space?
I have a client who owns a Victorian semi-detached property. At first floor level, one of her rooms overhangs the adjoining property next door - as-called "flying freehold" - and it is obvious that the property has always been constructed in this way. The overhang is about the width of a single bed, and about twice as long - say 8 foot by 15. The issue concerns the roof space above, which she is in the process of converting. As originally constructed, the roof void ran right through the two houses, without a fire wall. But the previous owner of my client's house then created a stud wall in the attic, the line of that wall mirroring the layout on the floor below, i.e. the "overhang" was replicated at attic level. That wall was constructed probably less than 10 years ago - maybe 2002/3 or thereabouts. Title is registered. The Land Reg plan does not show the overhang at any level (but then again limitations of scale would make this difficult). I haven't seen the pre-Reg documents. Question: My understanding is that a freehold title included airspace above - does this apply even to the first floor title? Does the existence of the freehold "footprint" at first floor level mean that my client can lay claim to the same "footprint" at attic level?
Does the advice regarding "blue lines" given on the Planning Portal website have a legal basis? The Portal advice is that any land that is adjoining the application site or nearby and which also owned by the applicant should be identified by a blue line.
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?
Our client is purchasing a Doctor's Surgery (D1 use) and we have been provided with a copy planning permission which specifically allows use as a Doctor's Surgery. Our client is to use the premises as a Veterinary Surgery (again - D1 use). Given that both uses are within the same class, will planning permission be required for change of use?
If a planning permission was granted in 2009 and there was a condition to commence development within 3 years and the 3 year period has expired, can the Planning Authority renew the expired permission. If so, how? Alternatively, can the Planning Authority vary the condition by deed of variation?
If planning permission is granted by the Secretary of State, or an Inspector appointed by the Secretary, on appeal, is that permission capable of being challenged by judicial review. If so, what are the circumstances?
A planning permission was granted on 4 October 2010 and states that the permission must be implemented within 2 years from the date of the grant of the permission which I understand means the permission expires on 3 October 2012. Please can you advise whether you are aware of any case law where the date that the permission expires is disputed?
I have a client who intends to take an option over Council land. The consideration will be delivery by developer client of a new retail unit. The planning application for the new retail unit is currently being determined but has been delayed sorting out planning issues. A Community Infrastructure Levy (CIL) Charging schedule may well now come into force for the Local Authority before the relevant planning permission is issued. If our developer client has to pay CIL they are less likely to do the deal as it then becomes less financially attractive overall. We want the Council to assume the CIL liability. Putting aside the issue of whether the Council will financially accept this, is it lawful for a Council to assume CIL liability or can they elect to waive it where they retain freehold and/or long leasehold? I can't find anything in the CIL Regs preventing a LPA from assuming CIL liability with result of its estates department paying the CIL liability to its planning department or giving the LPA the discretion to waive the CIL liability.
If a developer transfers land to a local authority for public open space as part of a s.106 agreement - and the local authority later obtains planning permission to build homes on the land intended as public open space - could the developer successfully challenge this? I'm told there may be a similar case involving Croudace Ltd but have been unable to locate it.
Under S.219 of the Town and Country Planning Act 1990 as a local authority we are able to execute works required by s.215 notice, however, there does not appear under s.219 for a requirement for a warrant, does his imply that we do not require a warrant and we are able to go ahead and just do the works?
Please could you advise whether you know of a clause in a planning agreement which effectively states that purchasers of individual dwellings on a large residential development are not liable for the discharge of planning obligations which should have been discharged by the developer?
Can a developer upgrade a byway open to all traffic with the approval of the local authority, but without involving the owner of the sub-soil? I have read Judith Pain's response to "my client is buying land where access needs to be obtained over a bridleway" dated 8 March 2012. In my situation the track is a BOAT. One person at the local authority has confirmed that it is not adopted and another has confirmed that because it is a BOAT the surface is vested in the local authority. My concern is whether we also need to involve the owner of the sub-soil. It is unregistered, so we would have to start with the presumption that half the subsoil is owned by each of the registered freeholders on either side of the track.
If the windows of a property, which is in an area subject to an Article 4 direction restricting the removal or alteration of the windows, are replaced without express planning permission, does the usual enforcement period of 4 years apply for breaches of planning control? The property is not a listed building.
An Applicant (application dated September 2012) is seeking a certificate of existing lawful use for a building that was used for just over ten years until September 2011 as a training centre. The building has not been in any use of any kind since then. Is the correct date for determining the application ten years prior to the date of application? If so, presumably the Applicant would have established only a 9 year period of breach and the Application would be refused accordingly?
Are there any formalites required to relinquish a planning permission which has been implemented. In this case the works carried out were sufficient for the LPA to agree that implementation had occured, but the development was never completed. The developer now wants to carry out a different development and will give up the right to complete the implemented development. It has agreed with the LPA that it will enter in to a planning obligation in a s.106 agreement for the new planning permission to covenant not to proceed with the implemented development if the new planning permission is implemented. Is a covenant in a s.106 agreement sufficient to relinquish the extant planning permission or do further steps need to be taken as and when the new planning permission is implemented?
I have a client who owns some woodlands. He is considering creating a natural cemetery - does he need a change of use planning permission and are there any other restrictions on where people can be buried or ashes scattered?
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 a planning permission for change of use render a s52 Agreement entered into in respect of the previous planning permission unenforceable? Or should a Deed of Variation or similar be entered into to reflect the change of use and remove obsolete restrictions?
I have seen your Practice Note on "Immunity from planning enforcement action". A client has installed air conditioning condensers on the roof of his freehold residential property without planning permission but immunity has been obtained from planning enforcement action as over 4 years have passed. If the condensers require replacing then does the immunity continue for the new condensers if they are in the same location?
To whom should an unsuccessful aplicant for variation of a s.52 agreement (the precurser to s.106 agreements) be made? Is it the Planning Inspectorate or the Lands Tribunal? I am aware a refusal to vary s. 106 agreements can be appealed to the Planning Inspectorate under s.106B, but this appears to apply only to 'planning obligations' as defined in s.106(1). It appears that when the system for planning agreements was reviewed in 1989 it was agreed that there should be an ability to discharge or vary agreements other than by way of applying to the Lands Tribunal (as was the process prior to 1990) but it is not clear whether this part of the 1990 Town & Country Planning Act wasintended to apply to 'planning agreements' made under earlier legislation.
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.
We have a situation where a developer wishes to access his site over a byway open to all traffic (BOAT). Highways officers believe that traffic movements on a BOAT should predominantly be pedestrian/horse in nature. There will be additional traffic movements created by the development including the use of lorries at least whilst the works are carried out and Highways wish to know whether they could object to the development on the grounds of unsuitable traffic movements. I am unsure how to advise, as the BOAT can obviously also be used for vehicle movements and a TRO could be created preventing lorries/vehicles above a certain size, using the route - which would have the consequence of preventing the development anyway. Although it does seem reasonable that they could object on highways grounds.
I am trying to find out whether parties can lawfully enter into a planning obligation after planning permission has been granted and the development built? Also, is there a different procedure for varying a unilateral undertaking as opposed to a bilateral section 106 agreement?
I have a client who has a 10ft right of way in common with others over a small private roadway. Unlike others he wants to develop land he owns which can be accessed over this right of way. The owner has grown leylandii hedges which lie on the boundary (possibly outside) and spread some 3ft over the right of way. Planners will not grant planning permission with the bushes like this. The purpose of the right of way can still be exercised but not this additional element - does it sound like it is reasonable to go for a mandatory injunction?
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?
(Subject to any restrictions on the title, rights of light and the provisions in the Party Wall Act), is it possible for my client to contruct a new building incorporating a wall immediately inside the boundary between his property and the adjoining property? In this case, there is no building on the adjoining land within 10 feet or more of the boundary line and no windows on the adjoining property whihc overlook this boundary. Is this something which is considered by the planning authorities?
I understand that it is up to the proposers of BID to determine the amount of the BID levy and how it will be calculated. Once a majority votes in favour of the BID then all non-domestic rate payers are liable to pay a BID levy. Can you challenge the level of the BID levy? And what if for example the improvements have not benefited the district and/or the individual property owner?
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?
Are the provisions of s.79 Bulding Act 84 and s.47, s.48 of Planning Listed Building and Conservation Areas Act 1990 mutually exclusive or would the provisions of the P(LBCA)A have to be carried out first before proceeding with the Building Act provisions? My question relates to at what stage is action under P(LBCA)A 90 exhausted allowing the local authority to proceed under s.79 Building Act 84?
Article 13 of the Localism Act (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012 sets out the transitional provisions in relation to planning enforcement. We want to decline to determine a retrospective planning application submitted in June 2012 where an enforcement notice was issued in December 2011. Does the transitional provision mean that any retrospective application submitted where an enforcement notice exists and was issued prior to 6/4/12 has to be determined or does the provision mean that both the enforcement notice and the retrospective application have to be submitted before 6/4/12 before the transitional provision can apply.
The Deeds are silent on responsibility for maintenance of a boundary but an 1860 Enclosure Award indicates the responsibilities. What status will this have in a dispute and would it override precedent, if historically a different owner has taken responsibility from what the Enclosure Award says?
Can the court order one of joint legal and beneficial owners to transfer to the other their legal and beneficial interest in the property? (for a premium) TLATA gives the court wide discretion and I have seen commentary suggesting that the court might be able to make such an order where parties were otherwise deadlocked, to enable the trust for sale in effect to be operated.
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"?
Do you think that a door which opens out over a highway needs a licence under section 177 or 178? This would only happen when the door is opened to allow someone to exit the building onto the highway. No part of the building will be constructed on the highway.
In respect of a Listed Building in a Conservation Area, Planning Permission was granted in the 1970s for use of a residential house as "nine flatlets" (non-self-contained letting units). That use continued for many years and each of the nine units had a separate Council Tax but there was no registration as a house in multiple occupation (HMO). My client wants to revert back to use as one single house. Is Planning Permission required on the Use Change (we appreciate that we will need Listed Building Consent for the physical alterations). The question has arisen on enquiry by the Lender who is reluctant to lend in case the Use as one house is denied.
We act for a small developer who has a plot of land. They have sold off 3 plots and retain some land upon which they will attempt at some time in the future to get planning for one or two more plots. One of the owners to whom they have already sold is extending his property and is using our clients retained land to store materials etc. Our clients have come to an agreement with him that he can continue to do this on the understanding that he does not put in any objections to our clients proposed planning application. Would you have a precedent of some type of agreement for this (or one that could adapted) that both parties can sign?
If a land owner continues to breach a section 215 notice despite prosecution (on numerous occasions) etc does the local authority have any power to enforce the sale of the land or to acquire the land? If the landowner continued to breach a section 215 notice and the local authority took direct action after every breach to clear the land (it's a landfill site) and put a charge on the land after every occasion - could the local authority reach a stage whereby they could enforce the sale of the land due to the value of the debt they own over the land?
Is it possible for a local authority to agree to enter into a section 38 agreement for the adoption of a road if some of the road is outside my client's title and is unregistered land? My client would be willing to get an indemnity policy in respect of the unregistered land.
My client is selling a church at auction. The church was used as a place of worship, but planning permission has now been obtained to convert the property into a residential dwelling house. Does my client need to ensure an EPC is prepared?
I am acting for a purchaser of a residential property who is purchasing it as an investment with a view to letting it out on Assured Shorthold Tenancies. The property is affected by a restrictive covenant in the following terms: "not to carry on any trade or business of any kind upon the property or any part thereof". I seem to recall seeing one of your articles (perhaps Ask the Team) which advises that the carrying out of the business of a letting to be in breach of such a covenant. It may be that the article was referring to holiday lettings rather than an Assured Shorthold Tenancy but I would be very glad to have your comments.
Please can you advise whether Regional Spatial Strategies have now been abolished in accordance with the Localism Act as I am given to understand that this has not yet happened pending the undertaking of sustainability appraisals in respect of each Strategy despite my understanding that section 109 of the Localism Act has come into force.
This Council as landowner has at its Dev Contol Committee meeting resolved to grant itself a deemed consent on the basis that a s.106 agreement will be entered into before the actual planning consent is issued. Given that we cannot enter into an agreement with ourselves I wonder whether there is a favoured way of getting the consent issued so we can sell the land 'with planning consent'? I guess we can issue the consent using s.111 Local Government Act 1990 and then annex a draft s.106 agreement to the sale contract.
My company is a residential property developer and we are transferring all their property to an, as of yet, incorporated company. The various properties that my company currently holds are as follows:- Freehold of one building, my company's title to which is not yet registered. We have exchanged contracts on some units and will need to serve notice on the proposed purhcasers. Do you have a notice document for this? Freehold of another building, title of which is already registered. We have exchanged contracts on the majority of units but not yet completed on any due to ongoing planning issues. Do you have a notice document for this? Freehold of another building, some of the units are completed and occupied, some are exchanged, and some are only reserved. Do you have a notice document for this? I would imagine that a notice for all 3 would be on virtually identical lines although I am slightly concerned about the planning issue and the length of time this is taking to resolve. Surely the change of Freeholder would not offer the prospective Leaseholder a way out of the contract? There is no mechanism in the contract that specifically allows the Freeholder to transfer the property to another company.
Can a local authority enter into a planning obligation as freeholder if also LPA? If developer with option to purchase enters planning obligation and they subsequently acquire the land do they bind successors-in-title to the legal interest in the land?
In Wales, if an industrial unit was being changed from a joinery into a food production unit (specifically producing cupcake accessories and delicatessen products), what use class would it fall under? No food will be sold to the general public on the premises, the units will simply be used for production.
The question relates to a planning issue. Sites were allocated for housing in the council's Core Strategy which was considered by the Inspector in the public Examination last year. The Inspectors Recommendations were adopted which included the allocation for housing on the site in question. Can a site, allocated for housing in the Council's Local Development Plan (but planning permission not yet granted) be de-allocated notwithstanding that the said site is suitable in planning terms for development, physically capable of being developed and can be developed within plan period?
If a lease contains a covenant limiting the use of a property to a single private property and planning permisson is granted for the property to be a house in multiple occupation, does the grant of the planning permission affect the enforceability of the covenant and can an application be made for its removal?
If a premises is within Use Class A1 or B1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987, does that mean that for planning purposes it is commercial property, or could it still be residential?
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.
I have a client buying a live-work unit, which he intends to use for residential purposes. He has told me he will be working from home 1-2 days a week and, as I need to give some confirmation to the mortgage lender about the intended use, I need to know whether working from home is sufficient to constitute live-work usage for planning purposes, even if he is only working from a computer.
If a dwelling has been tied to another building by way of a section 106 agreement and an application has been made to discharge the tie, can additional obligations which would normally have been dealt with by way of condition be inserted into the deed of variation in order to make it acceptable to release the tie? By way of clarification of 'tied', I am referring to where occupation of a dwelling is restricted by way of a section 106 agreement to an employee of the adjoining building (e.g. a shop).
I have been asked to research whether the grant of planning permission is considered to be an 'improvement' for which compensation is payable to the tenant under Part 1 of the Landlord and Tenant Act 1927. The Act does not appear to set out what constitutes an 'improvement', although the right to compensation arises where the improvement 'adds to the letting value of the property'. Is there any further guidance as to what constitutes an improvement for the purposes of the Act?
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?
If a private developer obtains planning permission and the new building encroaches upon the council's land, what remedies are likely to be available to the council? Presumably as there is a trespass of land in such a situation, the council can take action, irrespective of damages. But would the council be entitled to knock down the offending building?
A certificate of lawful use has been granted for a caravan in the grounds of a dwelling. The landowner now wishes to apply for permission for a garage on the site. In order to avoid over-development on the site the local planning authority would like to make the grant of permission for the garage subject to the revocation of the CLEUD. The tests for revocation of a CLEUD set out in s193(7) of the Town and Country Planning Act 1990 do not appear to be met, so could the CLEUD be revoked by way of a s106 agreement?
I am dealing with an application to discharge a planning obligation. A formal application has been made under section 106A(b). The applicant is stating that it is not necessary to enter into a deed if the application is approved. This seems to go against the idea that a deed may only be changed/discharged by another deed but section 106A (2) does only refer to a deed being entered into in the case of discharge by agreement under section 106A 1(a) rather than a formal application Can you please assist - is a deed necessary to discharge an obligation where a formal application is made under section 106A 1(b)?
I am acting for the Developer of a small residential building estate, where following the application for Building Regulation approval, the Council have served Advance Payment Code Notices, in relation to the Estate Road which will remain private. They are however also insisting on the Developer entering into a S. 106 Agreement, which requires the Developer to set up a Management Company which will responsible for the maintenance of the road and in respect of which the Plot purchasers will be members. A further requirement is that all plot purchasers enter into a covenant not to require the Road to be adopted at any time in the future. My client is asking whether the Council has the right to insist on all of this. I can't find anything. Can you guide me to anything which will help?
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?
My client is purchasing a property that benefits from A5 Use - I understand that there is a permitted change from A5 to A1. I have been asked to confirm that the property can be used for both without any further application to the LA?
Is Conservation Area consent required for replacement windows? I have a client who is buying a property that has recently had window replacement at the rear of the property. Indications from my research suggest that replacement windows in a conservation area would fall under permitted development and that there are no restrictions on this unless the building is listed. Is this correct and does it make a difference whether the windows are at the front or rear of the property, as with satellite dishes?
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.
Will the building of a retaining wall and flat platform within the boundaries of a commercial property require planning permission? The Buyer is aware of the structure and that it does not have planning permission.
Over the last 5 years he has periodically applied to the council to remove certain trees and this was granted. Last year he applied to remove a further 6/7 sycamore trees. This was refused, our client appealed and the decision of the planning inspectorate upheld the decision of the local authority. The refusal is based on the fact that it would cause significant harm to the character and appearance of the area if the trees are removed, even though our client plans to replant and there are lots of other trees in his garden. As well as extensive woodland behind the property. The reason our client wishes to remove the trees is that he is trying to create a lawned area in his garden. Does our client have any course of action. I know there is the high court challenge available to challenge a point of law – but as I understand that needs to be within 6 weeks of the decision (which has now passed). What are the enforcement penalties against someone that goes against an appeal decision? Are there any cases you can refer me to on this?
The difference between when to use a Section 247 order and when to use a Section 257 order under the TCPA 1990 is unclear. Can you please clarify. Does a Section 247 order only apply when the applicant is looking to stop up a highway but if the applicant wishes to stop up and divert a highway, then ought to do so under a Section 257 order?
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 agree with what you say here (Practice note, Charges: discharging a registered charge on completion). Near the end of your note, you say that one solution is to "ask the bank to make the application on form AP1 to discharge their charge by way of a DS1". True, but you could actually make this a bit simpler by asking the bank to fill in a form DS2 rather than the longer form AP1. As the DS2 clearly relates only to discharge of the registered charge, the bank may feel more comfortable doing that.
Paragraph 4(c) of Regulation 5 of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004.1633) states that a ‘responsible authority’ is only required to carry out an environmental assessment where ‘the plan or programme is the subject of a determination under regulation 9(1) or a direction under regulation 10(3) that it is likely to have significant environmental effects’ Section 19(5)(a) of the Planning Compulsory Purchase Act 2004 states that (5) The local planning authority must also— (a) carry out an appraisal of the sustainability of the proposals in each document; The Planning Compulsory Purchase Act 2004 appears to make an appraisal mandatory in every case but the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004.1633) appear to only require an environmental assessment to be carried out where it is likely to have significant environmental effects. Is an appraisal of the sustainability under the Planning Compulsory Purchase Act 2004 different to an environmental assessment under the Environmental Assessment of Plans and Programmes Regulations 2004 please? If not, which legislation (the 2004 Act or the 2004 Regulations) takes precedence? Any guidance would be much appreciated.
I have read your very informative practice note of Public Rights of Way. I have a query in relation to the extent of the duty of a private landowner to repair a public right of way which passes over his land and becomes damaged. The right of way runs inside a sea wall (and so I consider is likely to fall within the Marine and Coastal Access Act 2009. I will seek clarification on this point but I dont believe it impacts on my question for now). The sea wall became damaged and as a result the footpath, running behind the wall and on a private landowner's property, was also damaged. Pursuant to the Occupiers' Liability Act 1984, section 1(1) and 1(3) it seems obvious that the landowner owes a duty of care and must take some action in respect of the damage. I note the provisions of section 1(4) and 1(5) which seek to limit the action that must be taken by a landowner owning such a duty of care. Section 1(5) suggests a warning will be sufficient in some circumstances. I can see that my example is not such a situation where simply fencing off the damaged path and putting up a warning notice will be sufficient as a permanent solution - not least because this would appear to me to be the obstruction of a right of way and accordingly the landowner would be liable under the Act granting the right of way. On the assumption that the above analysis is right so far, is there any guidance on the application of section 1(4) OLA 1984 and in particular "the duty...to take such care
Do you have a precedent for an assignment of a receivable, namely either the actual compensation (if the amount is known) to be paid by a local authority in respect of various properties where they have exercised CPO powers or the beneficial interest in those monies, which the receiving client wishes to transfer to a 3rd party. Are there any SDLT implications?
I am acting for a client purchasing a new property. The Section 106 Agreement contains an exclusion clause in relation to private individuals but makes no reference to mortgagees of the private residential properties. Can the obligations of the S106 Agreement still be enforced against the mortgagee or, as the mortgagee acquires their interest from the buyer, are they also excluded. I would be grateful for your comments.
Under s73 TCPA 1990 an application can be made for a "minor material amendment". Having looked at the notes on this section the advice is that if approved it creates an entirely different planning permission. As such it suggests that all conditions in the previous permission should be repeated and that either of the permissions should be executed. I am advised that we have quite a lot of these at present and I initially believed that the linked s106 could be dealt with by Deed of Variation. However if they are entirely separate permissions and either could be executed then I believe they will have to be dealt with by way of a further s106 agreement. Can I please have your views on this?
Can a party to a section 106 agreement enforce a covenant given by a local planning authority under the agreement? i.e. the usual covenants provided by LPA's relate to issuing the planning permission after signing of the section 106 agreement. If for example the LPA did not do this what action could a party to the section 106 agreement take please? I'm only used to hearing about LPA's enforcing planning obligations against owners and developers. A planning obligation currently relates to land (adjacent to an application site), the Council is the freeholder but lets the land to a third party under a tenancy which expires in 2052 when it will thereafter return to the Council. The planning obligation currently binds the Council's tenant. However the Council want the planning obligation to be in perpetuity. However when the tenancy expires in 2052 the land will revert to the Council and the planning obligation (to maintain land) would then be void for being unenforceable as the Council/LPA cannot enter into a planning obligation with themselves even in such a scenario - is this correct please?
I have a situation where the Council as landowner has submitted a planning application and a s106 is required. I am advised that the Council took counsel's advice some years ago on how to deal with this situation and the advice given was that a Unilateral Undertaking could be entered into by the Council as landowner. I have discovered that the whole of the application land is not owned by the Council but part is owned by 'another'.I have now got a copy of 'another's' title which shows that there is a mortgage on that part of the land.In the circumstances I believe that we would need a UU executed by the Council, another and the mortgagee. Would you agree with this?
I am acting for a client looking to take a lease of aged commercial premises. There is an issue with the planning use status of the property. The property was originally a supermarket. There is no planning history registered at local authority and it appears the property has been used for an unauthorised use for many years. If it has been so used for more than 10 years the ten year rule will apply. Does this negate and remove any previous lawful use class of the property?
I act for a client who has acquired a long leasehold interest of the ground floor to a residential property. The remainder of the property has been leased to the landlord's wife for a premium of £1.00. It transpires that the property was converted into two dwellings without formal planning approval and the local authority have issued enforcement notices for the property to be re-converted to a single dwelling. Appeals have been lodged against the enforcement notice and these have been dismissed. We are now seeking to resolve the matter with the Landlord but are concerned that he may seek to transfer his interest in the freehold title. Whilst the leases are registered against the freehold title, can we also register a restriction / notice against the freehold title to prevent the landlord from transferring his interest in the property pending the resolution of this matter. If so, what would be the appropriate steps to take and what forms would need to be used etc to register the restriction / notice at the Land Registry?
Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012 - I would be interested in your thoughts on Article 16 of the above. Perhaps I am just being dense but I am not sure I understand what it is driving at. I almost expected it to be the other way round - that the new rules WILL apply provided that the Landlord complies with the new rules in relation to an existing rules withhin 30 days of 6th April 2012.
A developer has outline planning permission for a development which is subject to a section 106 Agreement in an area that has not yet adopted the Community Infrastructure Levy. If CIL is then brought in by that Local Authority after the execution of the section 106, would: a) a variation of the planning permission; or b) progressing from outline planning permission to detailed planning permission allow the Local Authority to levy CIL on the development?
If planning permission has been granted to homeowners to construct a wall by the front of their home that encloses highways land, can the owners claim adverse possession? Or is the land enclosed still a public highway?
I was looking for a list of operations that have been accepted by the court as amounting to Material Operations for the purpose of the commencement of development, the implementation of a planning consent. I could not find what I was looking for; might you be able to help, please?
Once section 123 Localism Act which inserts a new s70C into TCPA 1990 comes into force in April will it relate to enforcement notices which are already existing prior to this part of the Act coming into effect?
I'm reading the Localism Act 2011 section 11 in particular, which makes amendments to section 15 of the Planning and Compulsary Purchase Act 2004. Section (5) of section 111 of the Localism Act says that a local planning authority has to make a resolution to specify when the scheme in question will take effect etc. However there is no definition of 'resolution' and how the said resolution should be made, and I cannot find what I'm looking for using practical law.
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 act for a local authority. We want to appropriate land for planning purposes under s.232 of the Town and Country Planning Act 1990. S.232(4) states that before appropriating any land which "consists of or forms part of an open space", an authority must advertise the proposal to appropriate. My question is - what constitutes "an open space"? Is this land which is designated as Public Open Space, or can it just be any land which is not currently developed? (ie land which is grassed, some of which the Council maintains, and otherwise).
I have a query in relation to an option agreement to be entered into between a land owner and a developer; and in particular, a query about the definition of the option period. The option period is defined as commencing on the date on which planning permission is granted, and ending 20 working days after notice is served by one party to the other terminating the option period. I am used to seeing a specific definition of option period (ie commencing on one date and ending on another), rather than an option period ending by virtue of a notice being served. (There is no long stop date).
I understand from the planning guidance notes that there are restrictions of 1m and 2m on the permitted height of garden fences and I wondered if you could please confirm the permitted heights and whether or not this includes trellis? I would be grateful if you could please confirm the legislation as I have been unable to locate this in the Planning Acts?
A planning permission has been issued however one of the conditions contains an error. The permission was granted under delegated powers. The local authorities report which was used to consider the planning application refers to the shop's opening hours as 10am until 11.30pm. The title of the planning permission issued refers to 11.30pm however a condition on the permission states that the shop must close at 11.00. Can the permission simply be re-issued to correct this error? Or will the applicant need to submit another application to vary the incorrect condition?
I have been asked about the reasonableness of a Council refusing to discharge a section 106 agreement (prohibiting residential use of part of a storage building) notwithstanding the fact that planning permission for such a use has been granted on appeal. I am sure I recall seeing a case on the point, but have been unable to locate it. Do you have any ideas?
Clause 25 of the draft S278 Agreement provides for the registration of the agreement as a Local Land Charge. My understanding is that unless the agreement is made subject to another power which provides for the registration of obligations contained in the agreement- s106 of the Town and country Planning Act for example - S278 Agreements are not registrable as local land charges?
I am looking into a set of restrictive covenants over a property. The covenants require that 'all plans are first approved by the Vendor or his Surveyor (such approval not to be unreasonably withheld)'. I need to find some case law that relates to approval not to be unreasonably withheld stating instances where it has been found to be unreasonable so that I can assure my client that they have a chance of getting their plans approved. I would be very grateful for any help and information you can provide.
Can an unincorporated body bring a planning appeal? I know that such a body can seek planning permission, but do they have the necessary standing to appeal a decision? If not, would the court look to break the body into its constituant parts - attaching a right of appeal to one individual within the body on behalf of the association as a whole? I'm thinking of this with regard to something like a residents' association. Additionally, what happens if there is a change of name / status between application and appeal - eg marriage or company becomes incorporated? The right of appeal is only attached to the applicant - does this negate the ability to appeal?
Could I have your views on the following. If you have a commercial premises that is to be used for 2 uses (eg restaurant (A3) and takeaway of hot food (A5)) would you require planning permission for both use classes. I wondered if it would only be A5 you would need given that, under the GDPO, it does allow change direct from A5 to A3. (If this is right and that is the case (ie the GDPO change of use is the driving consideration - if there was no option to change under GDPO provisions then would you need A3 and A5). Or alternatively, does it boil down to which is the prevelant use eg turnover attributable to takeaway vs restaurant in terms of percentages or areas ? Any thoughts or useful articles would be much appreciated.
I recently used PLC's standard document contract for sale and purchase of land conditional on the buyer obtaining planning permission in a matter. The final version of the contract was different from the precedent, but the basic framework followed the framework of the precedent quite closely. My client (the buyer) submitted an application for planning permission within the contractual timetable laid down by the contract but the planners have indicated that they are minded to refuse the application unless my client withdraws it before the planners are obliged to make a decision. My client has therefore decided to withdraw the application and to resubmit a revised application taking into account the planners' objections. The buyer and the seller are both fine with this approach and in reality that's what counts I guess, but I am not sure, however, where this leaves my client in the context of the strict letter of the contract. The original planning application has not been refused. It has certainly not been granted and the planners have not failed to determine it. Where in your view does this leave my client in the context of PLC's standard form of contract and how long does he have in which to submit the revised application? Can the parties simply agree to deem the original planning application as refused in which case the buyer has a further 40 days in which to lodge an appeal leaving the timeline to run on. Or, does the timeline effectively stop until one of the t
We act for a client who has a shop and wants to put table and chairs on the pavement outside the shop. According to the council website our client needs a table and chair licence if the pavement is outside the scope of our client's demise. I have looked at the plan for the property and the extent of the demise is unclear on this. I have rang the council and they were also unhelpful. Is there any general law/cases on the extent of demise, for example does the demise extend to the furtherst part of overhang of the building/does it extend as far the paving area which above the basement?
House A has a derelict summerhouse on its property. The owners applied for planning permission to replace the summerhouse. The Owners of the neighbouring property were asked for their comments before planning permission was given and raised no objection to the application, as they had been assured by the applicants that the summerhouse would be used for their exclusive enjoyment. Permission was granted. The Owners of House A have replaced the summerhouse but are renting it out to tenants. If the neighbours had known about the proposed use of the summerhouse they would have objected to the planning application. My question is: what recompense do the Owners of the neighbouring property have? I have the impression that they do not have a remedy.
I am acting for a buyer who is about to exchange contracts for the purchase of a proeprty. The seller has just received a letter form a neighbour claiming that a large tree that has been on the boundary but within our sellers property has caused tree root damage to his garage. Our seller has put us on notice of a possible claim by the neighbour. What is the client's liability to the neighbour once he becomes the owner of this property? Could you please set out the basic principles of liability to the neighbour for tree root damage? Also should my client seek to continue insuring with the same insurer as the seller?
Can a water authority refuse consent to an extension of a residential property, where the works are building additional storeys above a pre-existing extension when there is a public sewer running through the property? My client has been refused consent to extend upwards on the basis that the water company are citing s.159 of the Water Industry Act as their grounds for refusal. S.159 appears to relate to rights of access to inspect and maintain etc, but my client says access to the sewer will not be affected. Do you know what powers of objection the water companies have, are they required to give full and detailed reasons for their objections?
Do you have any precedents for an Inter-Developer Agreement to cover a situation where two Developers have agreed to share ownership of a site (to including specific obligations in relation to the construction and future maintenance of infrastructure etc)?
I am trying to establish whether I should be concerned in connection with the lack of planning consent for use of the property as three flats. My enquiries have revealed that the use has been since 2005 although one of the flats had been used by the current vendor for many years before. Is this sufficient evidence of established use ? I might add that building regulation approval was sought in 1988 for "internal alterations to self contain existing flats".
An article in yesterday's evening standard suggested that in Westminster and Camden planning permission was required if a landlord let a property for less than 90 days. I cannot find the legislation that requires this. Can you direct me to it.
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.
Does planning permission need to have been granted and a development agreement in place (obviously with a developer on board) before a local authority seek to make a compulsory purchase order under the Town and Country Act 1990? If neither are yet in place would the secretary of state be less likely to confirm the compulsory purchase order or does it depend on how the order has been worded? (i.e. in relation to a specific type of development etc).
We have a situation where it is intended to grant planning permission for a development. However due to a reduction in public car parking at the site to nil, in order to make the development acceptable in highways terms there needs to be a requirement to provide alternative parking. Can the planning permission impose a condition to provide car parking off-site in the same way that affordable housing sometimes is?
I act for buyers of commercial premises used for over 10 years until 2007 within C2. Between 2007 and 2009 the premises were used for D1 but without planning permission. Will the break in the C2 use cause potential difficulties when applying for a certificate of lawful use?
If there was a s.106 agreement in place in relation to 2 tips on a site created back in 2000 and now there is to be the imposition of a new s.106 agreement in relation to the whole site (for which the 2 tips comprise of) then which s.106 agreement takes precedent? What is the legal status of the 106 agreement created back in 2000? Is the 2000 106 agreement overidden?
Your Practice note, Stopping up and diversion orders under section 116 of the Highways Act 1980 is very useful, but it would also be helpful if there could be a follow up article which deals with the procedure if any party, for example an adjoining owner, objects to the stopping up of the highway. We currently have exactly that situation and it must be fairly common for objections to be raised.
Should a restrictive covenant contained in a Section 106 agreement be protected by entry of a Restriction on Land Registry title or is it sufficiently protected by way of an entry on the Local Land Charges Register?
If the Council gives someone consent to fell some trees which are protected by a Tree Preservation Order on condition that they are replaced, and that person then sells the property before the replanting has been carried out, can we pass on the replanting duty to the new owner? If so how do we enforce?
This relates to the ways to notify the grant of planning permission. The Town & Country Planning Act 1990 (s70 to 78) mentions the local authority needs to notify the applicant, but I haven't found anywhere anything clearer. I would want to know who exactly needs to be notified and what is good service. In my particular case, I have the owners of the land, the planning agent (who made the application) and Solicitors. This is a retrospective planning application, but when granted, conditions were imposed. The agent was notified, but since there has been issues between agent / solicitors / owners, the information did not pass through and the solicitors are now arguing service was not correct (the time limit to appeal the conditions has passed). The notice was on the internet and they were fully aware of the date of the committee meeting, so they did have means to find out the outcome (which they may have done).
I am representing a local planning authority in negotiating a s.106 agreement. The land to be bound by the s.106 obligations are owned by The Crown Estate and The Secretary of State for Communities and Local Government. Are there any issues I should be aware of?
In 2008 my client sold a piece of freehold land to a developer for the purposes of contructing a medical centre. After being built, it transpired that the developer had connected into a private sewer (shared by my client and its neighbour) and a private lateral drain, both located on my client's land. The connections were made in 2009. No such right was granted in the Transfer to the developer as it was anticipated that the developer would connect to the public sewer direct under the adjoining highway. An agreement was reached prior to 1 July 2011 that the developer would pay my client for the (retrospective) right. The figure was arrived at based on the beneficial costs savings that were occasioned by the developer not having to provide alternative service and a deed would be drawn up accordingly. The deed was to provide for an apportionment of future maintenance obligations for the drainage and water services, especially as the surgery was (and still is by a large percentage) the highest user. Question: Does the Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 mean that a Deed is not longer required and or that payment is no longer due? If a Deed is still required, which PLC precedent would be appropriate in the circumstances? If payment is still due, should it be reduced due to maintenance responsibilities passing to the Regulated Sewerage Company?
Assuming a conservatory falls under a planning permission exemption, do we require planning permission or is it caught by building regulations to convert it from general use into a kitchen. Any new structural opening between the conservatory and the existing house will require building regulations approval, even if the conservatory itself is an exempt structure.
If a local authority fail to notify an owner of neighbouring land of a planning application so that they are unable to object, is there any means of redress for them if the application is subsequently granted against their wishes?
I have a situation where a client has a septic tank that is located in a neighbour's garden. The septic tank is failing and needs to be replaced. In doing so, it is proposed that the septic tank is replaced with a more modern package treatment plant and also, it will not be possible to place it in exactly the same position, but immediately adjacent. I understand that being located in a neighbours garden that there are no permitted development rights, but the existing septic tank system has planning approval dating back to 1995. My client has been advised by the local authority that a new planning application will need to be submitted and he cannot rely on the existing permission to replace the existing septic tank with a package treatment system. Is this correct?
I need to negotiate a Deed of Variation to a s.106 Agreement. The original party to the agreement is a limited company. I note from the paperwork that that company is now "(in administration)". Is there anything I should be wary of or include in the agreement?
I am acting for a bank on a development finance matter. The buyer has secured an outline consent (subject to approximately 40 conditions) and more recently a reserved matters approval (subject to approximately 20 conditions). Are the 40 conditions to the outline consent still relevant or do I now only need to satisfy myself as to the 20 conditions attached to the reserved matters consent?
Following on from the previous query, we have granted planning permission for a development where Certificate A was submitted, only to be told, after the event, that the applicant did not, in fact, own the property at the time of the application, but acquired it afterwards. The former owner is unhappy (as I presume, with the benefit of planning permission, he could have sold the property for more), and has now queried the validity of the permission. Whilst authorities must trust the applicant to submit the correct certificate, ownership is ultimately irrelevant in considering whether a planning application should be granted. However, I wonder if there is any case law on this point?
When is the correct point for the Council to serve an APC notice under s.220 HA 1980? s.220 refers to the 'passing of any required plans' where required plans means those plans relating to building regulation. My question is whether an APC notice should be served under s.220 by the Council 6 weeks from when the building regulations are applied for, or whether it is 6 weeks from when building regulations are granted?
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?
I am dealing with the mortgage of a site on a large business park and am acting for both the mortgagor and the bank. My local search carried out for the site has revealed some 106’s. My client is not a party to these agreements and the 106’s relate to the developer’s obligations for the whole business park when the development was taking place (approx 3 years ago) and cover various things such as constructing an Estate Road through the park etc. The obligations don’t seem to relate to that part of the land where my client’s property stands e.g. the estate road is some way away from my client’s property but nevertheless the 106’s appear as a planning charge in the local search of my client’s property. Incidentally, the obligations relating to the estate road don’t seem to have been fully complied with yet, as the estate road has yet to be adopted. Can the obligations in the 106’s be enforced against my client (the agreements don’t contain that clause excluding owner/occupiers from the obligations in the 106s) even if they relate to a different parcel of land on the business park or do the obligations bind each and every part of the land against which the agreement is registered? If so:- Time is of the essence therefore approaching the LPA for a discharge etc is an unfavourable option. The developer may not be inclined to give an indemnity as the purchase by my client from the developer completed 3 years ago and I would imagine there will be no
Re CIL and the option agreement precedents surely a developer is not going to want to serve an assumption of liability notice or give owner a CIL indemnity until at the very earliest developer has served an option exercise notice? It seems to me that what owner has to watch is that owner does not allow development to commence (eg by early entry by developer) BEFORE the land transfer has been made by owner to developer. Once the transfer has been made the developer becomes the owner and will trigger CIL payment on its commencement of development. Do you agree? Where a developer is allowed to draw down in tranches by successive option exercise what will the CIL situation be? Will developer on becoming the landowner of the first tranche become liable on development start for all the CIL applying to all of the consented land? And if that is correct what happens if the developer does not draw down further tranches of the consented land - will the liability be apportioned over all of the consented land with payment being triggered only on commencement of development of the individual tranches? Again if that is correct presumably landowner needs to watch out where developer is given, say, drainage rights over consented land not acquired for the benefit of the consented land acquired - presumably commencement of construction of the drainage will trigger the CIL payment in relation to that drainage land and here owner will need an indemnity as owner will not have parted wit
I am acting in relation to the purchase of a bed and breakfast which I believe should have planning permission for C1 use. The valuer states that "the change from C3 to C1.... is a somewhat grey area and depends on the degree of use of the property for bed and breakfast accommodation". I would be grateful if you could provide some clarity on this point.
Where a landowner applies for a permanent planning permission for a use of his land and the application is considered by the local authority's relevant committee, if the commitee do not wish to grant permanent permission can they grant temporary planning permission (i.e. a time-limited permission) or would they have to refuse the application and invite a further application for a temporary permission?
I'm dealing with a purchase of a mixed use property. The ground floor is currently used as offices, the first floor a residential flat. My Local Search reveals an application for change of use of the whole building from ground floor (retail Class A1) and first floor flat (Class C1) to Class D1 (non-residential institution). I am told that the property has never been used for D1 use. Quite apart from the fact that the ground floor use class appears to have been wrong originally anyway, the Seller is arguing that the D1 use was in fact never implemented and therefore the change of use remains as before. Is that correct or does an application for change of use need to be made in any event.
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?
In an application for Listed Building Consent the Local Planning Officer has not delegated to the Planning Committee but has drafted and provided Conditions to the Applicant insisting on the replication of various antiquary attached to the Listed Building to which there is no objection but insisting that the objects should not be removed until 12 months from consent which is wholly unreasonable as they are vulnerable to damage by adverse weather and theft as a consequence of the inevitable publicity the Consent will generate. How can the applicant challenge the Planning Officer's approach as time is of the essence?
My client is buying land from a local authority. It intends to simultaneously exchange and complete the sale agreement with the Council. Is there any risk to my client that a 3rd party could seek a judicial review of the Council's decision to dispose of the land to my client? If so (and assuming that the 3rd party successfully overturned the Council's decision to sell the land), could a court order that the Sale Contract and Transfer Deed are set aside (and thereby effectively overturn my client's purchase)? If the answer to these questions is "yes" then should I advise my client to wait for a JR period of 3 months to expire after the exchange and completion before my client commences any development works on the land it is intending to acquire from the Council?
I'm looking for a clear and fairly basic flowchart showing the various deadlines and timescales involved in planning applications/ decisions/ challenges/ call in/ judicial review etc. to inform drafting a contract conditional on planning. Whilst I appreciate that your standard form is drafted with all such deadlines in mind, it would be useful to have a quick reference guide both for ease of drafting and to inform discussions with the client. Do you have such a resource/ do you intend to produce one?
Outline planning permission has been granted for a development, and at the same time, a s106 agreement was entered into. Approval has now been sought for the reserved matters, and the council is using the reserved matters application to insist upon amendment of the section 106 agreement (to increase the amount of financial contributions payable). Can it lawfully do this?
The query relates to the relevant enforcement period for a breach of planning. I am buying a property for a client which was originally converted into two flats (with planning permission to do so). In the last nine years it has been subdivided again, but without planning permission, and is now 4 flats. Is the period during which the Local Planning Authority would need to have taken enforcement action four years (in which case we are safe) or ten years (in which case we are not). S171B(2) of the town and Country Planning Act 1990 states that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of four years beginning with the date of the breach. I am not clear where that leaves subdivision of dwellings.
I have a fairly complex commercial property question - am really trying to find out the type of document I should be drafting to cover the issues that have arisen. The Council own land which is to be sold to a Buyer. The transaction will involve the following: 1) sell the land to the Buyer 2) Grant a right for the Buyer to use some Council land in order to do works on the land sold in 1) - I propose to draft a licence to deal with this to give the Buyer authority to work on the land 3) The Council have to grant any additional rights that may be required over another piece of Council land that will allow an adjacent piece of the Buyer's land to be developed in accordance with an approved planning permission. (not sure whether this should be done by a separate agreement, or whose obligation it is to draft this document) 4) The Council have to remove any historic covenants on the land (the Council don't own this land) 5) Financial conditions where the Council will require overage provisions over the land to be sold to the Buyer. so a fairly complex financial arrangement binding it together. Any suggestions or pointers would be very welcome
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?
Regarding your note on reversion to an original planning permission after a time limited permission has expired, Once a temporary planning permission has expired is planning permission required to revert back to the former use?, what would be the position where the original permission has been implemented albeit not completed. I am thinking of a site for B1 B2 and B8 industrial units where the permission is implemented, then part of the site is used for a suis generis lorry park. Once that use ceases can the part implemented development permission be completed?
I am presently drafting a s.106 Planning Obligation. The Owner of the land is a trustee who is also a registered charity. Do I treat them as I would any other Owner of land or are there particular or special rules applicable to trustees and a charities that I should be aware of?
When dealing with the purchase of a new build property, do you still need to carry out the LLC1 and Con29 searches? In addition, is a NHBC certificate handed to the buyer's solicitors upon exchange of contracts with regards to a new build property (construction has been completed)?
In the document "Advertisement Control: enforcement" under "Good practice for LPAs", there is mention of a database of prosecutions for unlawful advertising and fly-posting on the planning portal. I have created an account for myself on the said portal but don't seem to be able to access the database. Does the database still exist? I prosecute for unlawful signs and would be interested in accessing the database and adding my own prosecutions if that was possible.
If an area of land is required to be 'public open space' in a Section 106 agreement does the responsibility for the land pass to the local authority or remain with the developer? I have a development site where part of the Estate is open space but the landowner charges the residents through a rent charge for the maintenance of the open space.
I would be grateful for a comment on an advertisement query that I have. Some months ago an advertisement board was erected at a nursing/care home and a banner was put on it. Planning permission was sought for its retention and refused. Since that time the banner has been removed but despite requesting the removal of the board this has not been done. I do not believe that the boarding alone constitutes an advertisement because it does not fall within the definition of s336(1) of the town & Country Planning Act because whilst it is classified as capable of being an advertisement it is not '...employed wholly or partly for the purposes of, advertisement, announcement or direction...' I would appreciate your view as my Client believes that it is still an advertisement and wants to take action.
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.
Decking is not classified as permitted development if it has a height of more than 300mm. If the land is sloping, where should the measurement be taken from, the highest point, the lowest point or a mid-point? I can't locate any cases on this point, although I note that under the provisions of the Planning Act the measurement is taken form the highest part of the ground.
We act for the purchaser of a leasehold retail property. Our local authority search has revealed a certificate of lawful proposed use or development authorising A2 use for the subject property. Our clients wish to use the property for A3 use. The sellers represent that the Certificate for Lawful Proposed Use was never implemented and the Property has always been used for A3 use. The planning register contains no reference to A3 although there is some reference to a former public house which may imply a historic A1/A3 use. Please could you clarify whether you consider the fact that they state that the CLOPUD has not been implemented to be acceptable or whether we need some other proof that this has not been implemented in the absence of anything else in the register confirming that the property has consent for A3 use.
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?
The use of a building falls within Class A2 of the Town and Country Planning (Use Classes) Order 1987. The owner wishes to take advantage of Class F(b) of the Town and Country Planning (General Permitted Development) Order 1995 and change the use to a mixed use of A2 use and as a single flat. Can the flat be used in such a way that it has no functional or operational link with the A2 use and still constitute a mixed use for the purposes of the Order?