Legal Property Experts

Planning Issues In Residential Conveyancing

As part of the conveyancing process Conveyancers are routinely tasked with considering planning issues arising during a sale or a purchase - although for the purposes of this note we are not considering new build properties, nor Building Regulations which has its own regime.

For most properties which were constructed sometime ago and have undergone an extension or internal alterations then a Conveyancer does need to consider whether there is planning consent for the works. In today’s market, in some instances, it is also important in residential conveyancing to check that the property can be used for its intended use as it may be a HMO or require a licence for letting the property.

Planning consent will generally be required for building operations and changes of use that have occurred at the property and as Conveyancers we will check the results of the local authority search as well as information provided by the seller’s Conveyancers and enquiries raised as part of the conveyancing process.

We will also consider whether there has been any breach of conditions attached to any planning consent. Any breaches would be listed in the enforcement section of the local authority search. It would be unusual if the search reveals any breaches, and it is therefore normal for the seller to be asked to confirm in replies to further enquiries that there have been no such breaches.

If there is no planning consent, or lawful use, or there has been a breach of other planning controls, this can potentially be enforced by the local planning authority.

However, even if there is no planning consent for building or change of use, it may be that sufficient time has elapsed such wthat potential breaches cannot now be enforced, or the use of the buildings is now established and therefore lawful.

Unauthorised building operations cannot generally be enforced against once a 4 year period has elapsed from the time they were carried out. Similarly, a change of use cannot generally be enforced against after a 10 year period (4 years in the case of change to use as a dwelling house) has elapsed since the change was made. The way to confirm either of these cases of lawfulness is via an application for a Certificate of Lawfulness of Existing Use or Development (CLEUD) or to submit a retrospective planning application, though this is normally only done when the result is crucial, usually as to value, because the process will of course delay completion.

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