Planning permission, building regulations, and restrictive covenants

When selling a residential property, the seller is asked whether any works or alterations have been carried out at the property. If the answer is yes, they are asked to provide the relevant planning permission consent and/or building regulations certificates.

Not all works require planning permission, but most require building regulations sign-off. 

Planning permission 

Planning permission in England and Wales is governed by the Town and Country Planning Act 1990. Under the Act, planning permission is necessary to carry out particular developments on the land. Developments are defined as:

1. Building, engineering, mining, or other operations in, on, over or under land; or
2. Making any material change of use of any buildings or land. 

Planning permission can be either deemed or express. Deemed consent is commonly known as 'permitted development' and can be carried out without consent.

Deemed consent is typically given to small-scale alterations such as conservatories or porches. However, permitted development can be excluded by the local authority for certain localities, for example, in conservation areas. This is referred to as an Article 4 Direction, placing more stringent regulations on planning permission.

Express planning permission must be sought in situations when permitted development does not apply. There are two types of express permission: detailed permission and outlined permission. Both types of express planning permission require compliance with certain conditions before work can commence. 

Listed buildings 

It is important to note that for listed buildings, planning permission is needed for any significant works. Local authorities are much stricter with what work can take place at a listed building, and it is essential to carefully check what is required before proceeding with any developments, no matter how small. 

Why does it matter? 

The local authority is responsible for overseeing and enforcing planning permission. Suppose there is non-compliance with a planning condition, or planning permission was not sought. In that case, the local authority can take enforcement action against the owner/occupier of the land or any other interested party.

It is important to be aware that planning breaches run with the property. This means that even if the current homeowner did not carry out the breach, they might still be liable to remedy it. Remedying said breach could include removing or re-building the development in question to ensure compliance with planning laws. 

Enforcement periods:

• Unauthorised building works: notice must be served within four years of the breach.
• Material changes of use: notice must be served within ten years of the breach.
• An injunction may be granted to prevent works from happening.
• Listed buildings: no time limit on enforcement 

Building regulations

Building regulations are concerned with the overall safety of the building in question. Building regulations are much more far-reaching than planning permission; works that do not require planning permission will still need to comply with building regulation standards, including works such as installing windows, doors, and boilers. 

A building control officer is responsible for inspecting the work carried out and, if compliant, issuing a Completion Certificate. 

Why does it matter? 

Like with planning permission, the local authority can take enforcement action against non-compliance with building regulations. The enforcement period is 12 months from the date of the breach.

However, even after the 12 months have passed, the local authority can still seek an injunction demanding that the owner (regardless of whether they carried out the works) bring the building up to the required standard, which may be costly.   

Restrictive covenants 

Properties can also be subject to certain restrictive covenants within the property's title documents. Restrictive covenants are promises not to do something. Restrictive covenants often include a provision not to alter or build on the property without obtaining freeholder/landlord consent. 

Why does it matter?

Restrictive covenants can run with the land, meaning that if you buy a property burdened with a restrictive covenant, the covenant may be enforced against you.

Even if planning permission has been sought and building regulations have been complied with, a homeowner could still breach a restrictive covenant. It is, therefore, crucial for a buyer's solicitors to check the title of the property for any previous breaches and inform the buyer of their obligations to ensure they comply with the covenant going forward. 

One way of tackling enforcement is obtaining an indemnity policy for breach. This can be sought for a breach of planning permission, building regulations, or freeholder's covenant consent. The undertaking of an indemnity policy is often at the expense of the seller.

However, if the council is approached about the breach, it may cause any indemnity policy offered to be void. It is, therefore, vital to discuss the possible implications of contacting the council with your solicitor beforehand. 

Top tip for homeowners: 

• Always check whether planning permission is needed before commencing any works.
• If you have work done to your property, ensure that the correct building regulations certificate is received at the end.
• Check to see if, when you bought the property, any restrictive covenants were listed on the title of the property.
• Keep all original documents provided to you when you have works done! It will save you time and money when selling your property. 

Contact our residential property solicitors.

Our residential property solicitors have expert knowledge of planning permission, building regulations, and restrictive covenants and take great pleasure in assisting homeowners with all their residential property needs.

We have offices in Brighton, Eastbourne, Hastings, London, Uckfield, and Ulverston and serve clients across the United Kingdom.

For all your residential property needs, contact SO Legal today.