Town & Country Planning legislation
The fundamental principles of planning law in England Wales are very similar to those in Ireland. The District Council or Metropolitan Borough Council is generally the planning authority in urban areas. Outside of urban areas, there may be County Councils and District Councils, the latter exercising most statutory powers which impinge upon the property, including, in particular, most aspects of planning law. In many areas, there are now unitary Councils, which are planning authority.
The Town and Country Planning Act controls the development of land and buildings. If a client intends to carry out development in a manner defined by the Act, then Planning Permission will be required. This can be obtained by way of a formal application to the local Planning authority or permission can be deemed to have been given pursuant to the Town and Country Planning (General Permitted Development) Order.
An applicant may make an application for an outline or full planning permission. Outline permission can be granted subject to “reserved matters”. A full application must be made to obtain approval for the reserved matters within 3 years of the outline consent. The work itself must be started within 5 years of the grant of outline permission. Alternatively, one can proceed with an application for full planning permission. For consents granted after 24th August 2005, development must be started within three years of the date of the full planning permission.
Works or a change of use require planning permission unless they are exempted. The equivalent of the exempt development regulations is the Generally Permitted Development Order (GPDO). Permitted development which is covered includes small extensions which affect size and height e.g. small kitchen/porch extension. There are terms and conditions in order to qualify. Practitioners must be satisfied that planning permission has been obtained and that the existing use of a premises is the permitted use authorised by the local planning authority.
Types of use are defined in the Town & Country Planning (Use Classes) Order which lists 16 separate classes. Changes of use within a class do not require planning consent while changes between classes do. Class A1 shops include Post Office, Travel Agencies, Hairdressers and Internet Cafés and accordingly no planning permission is required for a former Travel Agency to be used as an Internet Café. Accordingly, when acting for a buyer, you will want to be sure that the intended use of the subject property will be permitted under the planning laws.
A breach of planning law is likely to result in the issue of an Enforcement Notice and / or a Stop Notice. Failure to comply with Enforcement Notice is a criminal offence with a penalty or a fine up to £20,000.00. Enforcement Action must be taken within 4 years of when the operations were y completed (e.g. such as the erection of a new building). The recipient can then appeal to the Secretary of State pursuant to any one of the grounds for appeal set out in the Town and Country Planning Act.
Where there has been no enforcement for a period of four years (building works and conversion to a house) and in most other cases, ten years, a lawful development certificate may be applied for and obtained from the Council. This is more than mere immunity against enforcement.
It is not the practice in England and Wales to obtain a certificate of compliance with planning permission from an architect or engineer. Where there are conditions in planning permissions requiring certain matters to be approved by the Council, confirmation by the Council confirmation is required.
Planning legislation compliance is, in effect covered by inspection, replies to pre-contract enquiries and the local authority search results (which disclose planning permissions, enforcements and in some cases matters required under planning conditions). The certificate of compliance with Buildings Regulations gives some further comfort, as the Council may not issue it if there is an apparent breach of planning permission.
Building Regulations and Building Control
This system of building control and building regulations in England and Wales is very similar to that in Ireland. Building Regulation consent is required for most works. It is practice to obtain certificates of compliance from the building control authority (usually the Council)
It is necessary to ascertain any alterations and additions to the property and whether Building Regulations have been complied with. Check for a certificate of compliance from the Council. If there is no such certificate, retrospective approval can bed sought with the grant of a Regularisation Certificate. Application for Regularisation Certificate will incur extra costs and can delay sale/purchase of the property.
An alternative method of compliance, commonly used in a new development is that the new home warranty provider issues the relevant equivalent of consent and deals with compliance. The new home warranty provider also gives the new house guarantees and deposit cover. The main providers are NHBC (the equivalent of HomeBond), Zurich, and Premier and there are a number of smaller providers.
There is a one-year time limit on the most common type of Building Regulation enforcement. However, enforcement by injunction remains a possibility after this period. It is best practice to seek evidence of compliance for all work since the original construction. It is often sought for the 10 previous years.
Apart from the legal risk of enforcement, Building Regulations compliance is desirable from a practical perspective, given the implication of a breach for the physical state and condition of the property.
Since April 2002, Building Regulations apply to the installation of replacement windows and doors, roof lights and roof windows. Confirmatory Certificate will be available from either the Local Authority or from FENSA (Federation Self-Assessment through the Glass and Glazing Federation Self-Assessment Scheme).
Since January 2005, electrical installations require building regulations consent unless undertaken by a qualified person under a self-certification scheme. Since April 2005 this has also applied to the installation of a central heating system of a renewable energy system.
On April 1st, 2009 the self-certification scheme for gas engineers changed from CORGI to the Gas Safe Register.
It is desirable to obtain the self-certification certificate (or building regulation consent) for the relevant works.
A landlord of a dwelling house must obtain a gas safety certificate annually to show that any gas installation (including LPG appliances) or flue in the home is in good repair, and safe to use. This is not a building regulation requirement as such. It is usually required for the purchase of rented residential property.
