Planning Permission – A Conveyancer’s Guide
Planning permissions predominantly take two forms:
- An outline permission. This is best thought of as an application that seeks to establish the principle of a proposed development, in terms of its general structure. Once granted, approval of “reserved matters” will follow. These usually relate to access, appearance, landscaping, layout and scale.
Planning conditions are imposed by a local planning authority (“LPA”) as a condition of granting consent. They generally fall into two types:
- Those that regulate how the development is carried out (for example conditions requiring works to be done in a certain manner or in accordance with defined plans); and
- Those that require further work to be done by the developer before development can commence (for example, the approval of further plans or lay out specifications by the LPA)
Planning conditions typically become effective once the planning permission is implemented and will enure for the benefit of the land and any persons having an interest in the land (unless expressed to be personal).
A property’s planning history will be disclosed by one of three principle means:
- The Seller’s disclosure;
- The Buyer’s review of the planning portal for the target property; and / or
- The Buyer’s local search
Any planning permission revealed by the above process should be obtained and appended to the report on title being prepared for the purchaser. In addition, the following should be checked:
- Where a development has been completed is there evidence that all planning conditions have been formally discharged?
- Where a development has been implemented, but where development has not been completed, is there evidence that all pre-commencement conditions have been satisfied and is a planning tracker available, showing steps taken to discharge existing conditions to date and projected dates for satisfaction of these?
- Where planning conditions remain to be complied with, can these all be satisfied by the developer independently of the requirement for third party consent / the carrying out of works on third party land?
- Have any variations been made to the planning consent by way of a section 96A or section 73 application? If so, the LPA confirmation or planning consent will need to be obtained and checked.
- Where a planning consent has not been fully satisfied at the point of exchange what obligations are placed on the seller to procure the satisfaction of these in the purchase contract and what indemnities / security is being provided to the buyer in the event of non-performance or insolvency of the seller (in the form of a build warranty or otherwise)?
In a scenario where the purchaser is acquiring subject to a planning consent that they intend to implement further considerations will arise:
- An architect’s certificate may be required, granting licence to the purchaser to utilise the approved plans.
- Letters of reliance will be required from any professional third party who has provided supporting documentation to the planning application so that the purchaser can rely upon the professional advice / data included in such documentation.
- The planning consent will have to be checked to see whether there are any “Grampian conditions” (conditions that require works to be carried out to land outside the red line of the application site before development of the application site can be commenced).
- Where the target property forms part of a wider landholding, sufficient rights will need to be granted for the benefit of the area being acquired in the sale transfer so as to enable development, to the extent that use of the land being retained by the seller is required. Examples of this include:
- A right to create and maintain visibility splays;
- A right of drainage across the adjoining land; and
- A right to landscape and to thereafter maintain planting for prescribed periods of time.
The planning history of a real estate asset is often complex and the prudent conveyancer will undertake extensive study of it in order to obtain as full a picture of it as possible so as to fully advise their client.
RDP is a firm that specialises in advising landowners, developers and funders on the acquisition, disposal, development and promotion of land.