Conveyancing solicitors and those who overlook ‘conditional’ planning consents

01 May 2013

Planning permission or planning consent is the written permission of the relevant Local Authority that is required in the United Kingdom in order to be allowed to build on land, or change the use of land or buildings. It will either be an outright consent (subject to implanting it within 3 years), or it will have conditions attached.

Conveyancing solicitors who act for home buyers will always be on the lookout for previous or current activity on the land for which planning consent should exist.

However, any works which have taken place without the benefit of planning consent, and which has remained unchallenged by enforcement action for 4 years or more, cannot be enforced against. Though any change in the use of land and buildings must have existed for in excess of 10 years before it can be protected from enforcement action.

As a result, when a conveyancing solicitor who is acting for a buyer asks a seller’s conveyancer to supply a planning consent, they are often faced with resistance usually through laziness of the selling lawyer, or the fact that the seller has not supplied their lawyer with previous consents as they in turn did not have them passed on from their previous conveyncer. Usually the buyer is simply told:

  • “Our client does not have any paperwork” – which was never the question anyway and so you know it will be quicker to self-help and obtain the consent yourself.
  • “Due to the age [4 or 10 years as applicable] we are not going to supply a copy”.

If the works were beyond those dates, then many buyers accept this and move on, as they consider the Council could not enforce whether consent was or was not given, so a piece of paper makes no difference. However – and this is the frightening part for so many conveyancers who are unwittingly doing this even as you read this – it depends on which type of planning consent as to whether the selling lawyer is right and whether the buyer’s lawyer should accept it as right. Get this wrong and the buyer’s conveyancing solicitor can be caught being negligent.

If the planning consent is conditional then the buyer's lawyer should be seeking a copy of it (whether from the seller or direct from the Council) whatever the age of the consent, as there is a separate enforcement period for breach of a condition in a conditional planning consent. This is 10 years from the date of the breach. By definition, the buyers’ solicitor therefore needs to see the consent, to see the conditions, to know if any have been breached, and have any been breached for longer than 10 years. As a result, the age of a conditional planning consent is irrelevant as to whether the buyer’s solicitor should be reading it for details of the conditions. Not only this, but conditions are as binding as covenants in deeds, and if not breached for 10 years, they can affect a buyer’s use and enjoyment of the land. Such conditions might include – and there is a huge number of possible ones:

  • Permanent year round living is not permitted.
  • Agricultural tie of the house and land.
  • No windows to be inserted in a particular wall to overlook a neighbour, or opaque glass to be used.
  • The garage must be kept for vehicular use.
  • No walls/fences or other means of enclosure allowed at the front of the property.

So make sure you can have faith in your conveyancing solicitor not to overlook ‘conditional’ planning consents, or you might move in to your new home and be faced with a planning condition that stops your intended use in it’s tracks, and at great cost/inconvenience to you.