Planning issues in Property TransactionsProperty Search North EastVictoria Joy – Consultant, Landmark

What will we be looking at during the session?

During the session we will look at:

why planning issues are important

planning information in property transactions and Landmark’s planning reports

an update on recent developments in legislation and town and village green applications

Planning Issues for the Buyer

Short and long term plans for the property:

• use• structural issues• breaches & enforcement• implementation of planning

permissions• development

Obtaining Information

Title investigation

Physical inspection & survey

Searches

Pre contract enquiries

Why do you need to think about this?

Your client may be considering development and may need to know about relevant planning policy information

Your client may be concerned about development close to the property

There may be proposals for development that would affect your client’s use and enjoyment of the property as well as the value of the property

Your client may be concerned about rights of way on or close to the property

Failure to advise your client and provide suitable information could result in complaints or claims

Planning Information

Permitted Development

The Town & Country Planning (General Permitted Development) Order 1995 Grants automatic planning permission for various classes of developmentE.g. from 1 October 2008 extensions and additions to a home will be considered to be permitted development - subject to certain limits and conditions relating mainly to size and heightBuilding Regulations compliance still necessary

Material Change of Use & Use Classes

Planning permission is generally required for a material change of use

Town and Country Planning (Use Classes) Order 1987 sets out different use classes

Permitted development rights can allow certain changes between use classes e.g.

• hot food takeaway to shop (A5→A1)

• general industrial to business (B2→B1)

Planning Information Revealed by the Local Search

Searches (LLC1 and Con29) may reveal several types of planning information for a property which are available for public inspection

These include:

• planning permissions

• determined and pending planning applications

• section 106 agreements

• enforcement notices

• listed building and conservation areas

• compulsory purchase orders

• tree preservation orders

• Article 4 directions In the majority of cases the information relates to searched property only

Section 106 Agreements

Entered into by a person with an interest in land and the local authority

Set out planning obligations e.g.

• restrict development or use of land

• require operations/activities to be carried in, on, under or over land

• require land to be used in a particular way

• require payment of financial sums to be made to the local authority

S106 agreement can be:

• agreement between local authority and developer

• unilateral undertaking by the developer

Planning Enforcement Notices

Examples of notices:

Planning Contravention Notice

Breach of Condition Notice

Enforcement Notice

Stop Notice

Listed Buildings

A building of special architectural or historic interest: Grade I, II or III

English Heritage responsible for designation

Consent required for:

• demolition

• alteration/extension that would affect the character of the building

• note: proposed changes under Enterprise & Regulatory Reform Bill

Conservation Areas

Areas of special architectural or historic interest – the character or appearance of which it is desirable to preserve/enhance.

Consent required to demolish an unlisted building in a conservation area

Compulsory Purchase Orders

A government or local authority order to purchase land or buildings for a public interest purpose e.g. construction of a major road

Tree Preservation Orders

Tree Preservation Orders:

• used to secure preservation of single trees or groups of trees which are considered to have amenity value

• consent required for works to the tree e.g. lopping/ felling

Article 4 Directions

Issued by local planning authorities

Remove some or all permitted development rights e.g. in relation to buildings in conservation areas

Planning update: The Localism Act 2011

Localism Act 2011: Aims of Planning Reforms

Make planning system:

• clearer• more democratic• more effective

Most planning proposals in force from April 2012

National Planning Policy Framework

National Planning Policy Framework – NPPFUpdate: April 2012

The decision of whether development is appropriate for a site will be based on the principle of ‘sustainable development’.

This is defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. In planning terms, it means planning for prosperity, people and places.’

At the heart of the new system is a presumption in favour of sustainable development.

Decisions regarding development will be based on a Local Plan (LP) document. This will be drawn up by individual Local Authorities and will aim to set out strategic priorities such as housing, business, minerals and national defence.

Each LP will be based on the principle of sustainable growth and will be objectively reviewed by an independent third party.

National Planning Policy Framework – NPPFUpdate: April 2012 (2) Local Planning Authorities will look to approve any development that fits the LP,

or where the plan is ‘absent, silent, indeterminate or the relevant policy out of date’.

These policies should apply unless the adverse impacts of allowing development significantly outweigh the benefits.

The National Planning Policy Framework will replace the current Planning Policy Statements (of which there are around 40).

Those most relevant to housing development include:

PPS23: Planning and Pollution Control

PPS24: Development and Flood Risk

PPS3: Housing

How will the aims of the Act be achieved?Regional Strategies

Abolition of regional spatial strategies introduced by Planning & Compulsory Purchase Act 2004

Limited community involvement in regional strategies

How will these aims be achieved?Duty for local authorities/public bodies to work together

Act contains a duty for local authorities to work together on planning issues

Could relate to:

• flood risk• public transport• major retail developments

How will these aims be achieved?Community Planning

Act introduces rights for communities to develop a “neighbourhood plan”

Neighbourhood plan will be developed by residents, employees and business through parish councils or a neighbourhood forum

If appropriate, neighbourhood plan will be voted on in a local referendum and brought into force by the local authority if approved

How will these aims be achieved?Community Planning

Community organisations permitted to put forward development proposals

No need for planning application

Referendum to show support

How will these aims be achieved?Requirement to Consult

Developers required to consult communities before submitting planning applications for some developments

Communities able to comment at early stage of proposals

How will these aims be achieved?Community Infrastructure Levy

Local authorities can require developers to pay a levy on development of homes, businesses or shops

Money goes to new infrastructure projects such as roads and schools

Act will allow:

• more power for local authorities to determine the rates payable

• some of the money raised to be spent on non infrastructure issues

• some of the money raised will be required to be used specifically in the neighbourhood affected by the development

How will these aims be achieved?Nationally significant infrastructure projects

Abolition of Infrastructure Planning Commission

Decisions will revert to being taken by government ministers

National policy statements to be voted on by parliament

BUT……..this could all changeGrowth & Infrastructure Bill 2012

Decisions on “large scale commercial and business projects” to go through in not more than 12 months

The Secretary of State may be given powers to make decisions in relation to development of retail & business parks – especially in areas where there has been a “history” of applications being opposed/ rejected

How does this fit in with Localism?

Solar Panels

Planning permission required?

Conservation area/Article 4 Direction?

Building Regulations?

Restrictive covenants?

Lender issues

• 25 year leases • Registration of title• LTA 1954 protected?

Town & Village Green Applications

Commons Act 2006

Any person can apply to their local authority to register land as a town or village green if:

“a significant number of the inhabitants of any neighbourhood within a locality, have indulged as of right in lawful sports or pastimes on the land for the period of at least 20 years.”

The use of the land must be “as of right”

Without force

Without secrecy

Without permission

When are village green applications often used?

May be used to block or delay applications for development:

• increases costs for developer

• significant time delays• application can be made

after planning permission has been granted

R (Lewis) -v- Redcar and Cleveland Borough Council (2010)

Local residents used golf course for recreational purposes

Court of Appeal found that the use was not “as of right”

Residents had shown “overwhelming deference” to the use of the land as a golf course

Residents had not interfered with playing of golf on the land

R (Lewis) -v- Redcar and Cleveland Borough Council (2010): Supreme Court Decision

Deference to dominant use does not mean that the residents’ use was not “as of right”

Provided use is without force, secrecy or permission, deference to the dominant use of the land does not matter

Supreme Court found that registration of the land as a village green would not affect its ongoing use as a golf course

The implications of Redcar

Landowner cannot rely on the fact that users of the land defer to dominant use as a defence to an application for registration

Landowner needs to either:

• prevent entry: use signage or fencing• permit entry using signs

Note: Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust -v- Oxfordshire County Council:

• “No right of way” on signage does not prevent recreational use “as of right”

If users have 20 years’ use as of right, signs allowing entry do not prevent use being as of right

DEFRA proposals for reform: 2011 Consultation

“Sifting” by local authority

Declaration by landowner

Apply a “character” test to the site

Prevent registration of land subject to planning permission or a planning application – provisions now included in the new Growth & Infrastructure Bill

Introduce fees for applications

Recent Government Announcementon Change in Use

Planning permission will no longer be needed for some conversions

Eric Pickles announced on 24 January 2012 that:

• new permitted development rights will allow office space to be converted into new homes (B1(a) to C3)

• 3 year “sunset clause” and review at that time• local authorities can seek an exemption if substantial adverse economic

consequences, but only allowed in exceptional circumstances• also new PDRs for the conversion of agricultural buildings to other

business uses (inc. shops, restaurants, small hotels and leisure facilities and offices), subject to a size restriction

• and town centre buildings will be able to convert for up to 2 years to uses including shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1)

Landmark’s Planning Reports

Summary

Buyers/developers need an awareness of planning issues affecting the property and surrounding area

Localism Act 2011 could result in significant changes to local planning policies and new planning applications

Town/village green applications may have been submitted to block planning applications

Town/village green applications demonstrate the need to be aware of land use designations and rights of way

Landmark’s planning reports can provide vital information on these issues

Your client may not want to be near….

What the local search will not reveal….

Plansearch Plus & Sitecheck Planning: Key Features

aerial photo

planning policy information

commercial & residential Applications

planning decisions on larger applications

local facilities

house prices

phone masts

crime rates (relevant to insurance)

educational information

Datasets used in Plansearch Plus & Sitecheck Planning

Crime: Home Office

Development plans: Devplan

Educational establishments: DfES, Welsh Assembly, Scottish Executive

Local Plan features: Local Authorities

Local Development Plans: Local Authorities

Mobile phone masts: OFCOM

School performance tables: DfES

Planning applications: Barbour ABI

Points of interest: Point X

Postcode level housing & resident profiles: EuroDirect

Insurance claims ratings: Crawford & Co

Rights of way: Ordnance Survey

Questions?

Tools to assistProduct MatricesFlow chart

Outcomes

During the session we have looked at:

why planning issues are important

planning information in property transactions and Landmark’s planning reports

an update on recent developments in legislation and town and village green applications