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Planning for success: navigating planning permissions and building regulations in property transactions

Posted on 12 June 2024

We regularly act for clients selling or buying properties which have been altered requiring planning permission and building regulation approval. Often, there are issues with the property 'as built' not matching the original plans and drawings submitted with the planning application, non-compliance with the planning conditions and missing building regulation final certificates. This inevitably causes delays to the anticipated exchange and completion timetable. However, a proactive seller can plan ahead and get organised to ensure they have the right paperwork to satisfy a buyer and, if there is one, a lender.

Breach of planning control

Breach of planning control does not automatically lead to criminal liability but can be subject to enforcement by the Local Authority. Until now, the enforcement period for planning permission for building works or change of use to a single dwelling was four years. As of 25 April 2024, this has been increased to 10 years, which brings it in line with other planning enforcement periods. Where substantial completion of the works occurred prior to 25 April 2024 the 4-year rule will still apply.

For clients selling a property which lacks the necessary planning permission for alterations, it will be important to keep evidence of works which took place prior to 25 April 2024 to show that the 4-year period is the relevant one. Enforcement action can include a requirement to restore the land or property to the condition it was in before the unauthorised works took place. For example, this could even mean demolition of an extension.

Breach of building control

Building regulations are primarily there for health and safety reasons. They apply to both internal and external works (altering internal or external walls) and relate to matters such as electrical supplies, gas supplies, changes to the structure of the property and changes to drainage and water supplies. A building regulation completion certificate indicates that the works met the relevant standard at the time that the inspector paid their final visit to the property.

The enforcement period for breaches of building regulations was increased from 1 year to 10 years in October 2023. The longer enforcement period will apply to works completed after October 2023 –  there is some ambiguity around works completed prior to that date – so it will be important to keep evidence of when works were completed where a certificate is missing. Enforcement action would include a requirement to bring the property up to the relevant safety standards.

What can property buyers and sellers do?

The extended enforcement periods now mean that to ensure that everything is in place for a smooth sale process, it is vital to keep records of alterations to property for at least 10 years following their completion.  

If purchasing a property which benefits from works which lack or are in breach of planning permission, it is usually possible to purchase indemnity insurance to cover costs if enforcement action is taken. Where there is a potential breach of building regulations, we suggest asking your surveyor to confirm that there are no immediate health and safety concerns. If not, then we recommend a suitable indemnity insurance policy is also obtained. This would protect you and any lender from the associated costs of complying with an enforcement notice.

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