# 30 year old planning permission on dwelling



## Roundy# (3 Nov 2010)

First of all apologies if this should be in the askabout law forum....but I felt that this forum was more appropriate.

I'm in the process of selling a 30 year old bungalow. The prospective buyers solicitor has requested a declaration of identity and full certificate of planning permission and building regulations in respect of the property from their engineer.

Points to note:-
1. The driveway into the house is not as per the initial planning permission drawings, but is in a different location 
2. Likewise the septic tank is not located exactly as per the initial planning permission dwgs

My questions are:-

Would it be likely that retention permission would have to applied for, for the above - and is this something I will have to arrange? Given the age of the bugalow, and if it is taken that the changes are not very significant - could it be seen that retention permission would not be requried?
obviously this building will not meet current building regulations, is the cert meant to be in relation to building regualtions of the time, or is it sufficent that the building meets the standards as set out in the specification as supplied with the initial planning permission drawings?
Thanks


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## mf1 (3 Nov 2010)

Talk to an architect/engineer. Then talk to your solicitor. 

The house was not built in compliance with the planning permission. At this late stage, the Local  Authority cannot issue enforcement proceedings and you could offer the house for sale without the benefit of an Architect's/Engineer certificate. The problem is , in these difficult times, most purchasers do not want houses that have any issues. 

I think you need professional advice as to how best to deal with the issue. If you have a prospective purchaser, you should be nursing them and doing whatever it takes to get the deal over the line. 

The planning issue should have been dealt with before you put the property on the market. 

mf


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## RKQ (3 Nov 2010)

Roundy# said:


> , is it sufficent that the building meets the standards as set out in the specification as supplied with the initial planning permission drawings?


 
The Building Act 1991 came into force in 1992. 
Any building built before 1992 is exempt from the Building Control Act. One can not comply with laws that did not exist when a structure was built, (30 years ago was circa 1980)

If a specific building by-law condition was written into the Grant of Permission then an Opinion on compliance with this Building bye-law might be required.

A Certificate of Compliance with Planning Permission could be issued once the non-compliance position of the entrance & septic tank is explained therein - also noting the works were constructed in 1980 with regard to the Councils powers of Enforcement.

Seek full professional advice. It is unlikely Retention is required but if required it would provide the buyer with a house fully compliant with Planning.


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## Roundy# (4 Nov 2010)

thanks guys


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## onq (4 Nov 2010)

Roundy# said:


> First of all apologies if this should be in the askabout law forum....but I felt that this forum was more appropriate.
> 
> I'm in the process of selling a 30 year old bungalow. The prospective buyers solicitor has requested a declaration of identity and full certificate of planning permission and building regulations in respect of the property from their engineer.
> 
> ...



Hi Roundy#

It is possible that many of the issues arising can be dealt with under the provisions of the separate branches of law as it relates to (i) planning and (ii) building regulations.
I offer the below advice with the proviso that there is a new Planning Act coming our and I haven't mastered it yet.
Formerly, and this may still be the case; -


The time limit for enforcement action is currently 7 years for a development built without benefit of planning permission.
 The time limit for enforcement action is  currently 12 years for a development built with benefit of planning permission but not compliant with it [7 years from the end of the Grant of Permission of 5 years].
At the time the subject building and works were originally completed the time limit for taking enforcement action may not have been determined, but the 1994 Planning Regulations stipulated this to be five years following a High Court decision.
 Section 22 (7) of the Building Control Act 1990 includes a Transitional Arrangement which states the following

_(7) Where any works to which bye-laws applied (being bye-laws to which subsection __(1)  relates) were carried out prior to the 13th day of December, 1989, and  any requirement of the bye-laws concerned, or any statutory requirement  relating to such bye-laws, was not complied with, proceedings or any  other act shall not be taken on the basis of such non-compliance, and  approval to the carrying out of the works shall be deemed to have been  granted, unless the building control authority serve on the owner of the  works or other person concerned, within six months of the operative  day, a notice stating that the works constitute a danger to public  health or safety._

As with Planning Law, there have been several amendments to this first Act and no consolidated text available, so I may stand corrected on this, but I think it may still apply - worth looking into at any rate.
If the driveway is located in such a manner as to cause continuing road hazard, it may be actionable, but not under the planning acts AFAICS.
Similarly unless your septic tank is causing a concern in relation to a Public Health issue, I fai lto see where any enforcement action may arise.
This presupposes no prior enforcement action was taken against the property and that is something you will have to research.

--------------------------

Latent defects are a different matter to patent defects and the assurance to be offered would be limited to a paper exercise.
So in relation to my comments above, it is possible that an architect could issue a certificate or letter of comfort confirming that due to the elapsed time, the lack of previous enforcement action and the non-existence of any hazard at the moment from either the entrance or the septic tank, the locla authority is precluded from taking enforcement action.

This is not the same as offering an opinion of compliance with planning permission or building bye laws.
A call might be put into the local authority to confirm they have no outstanding Planning ENF file on the property and are not contemplating any action and are not aware of any hazard.

Similarly a call could be put to the Building Control Officer.
This plus the advice above will not hold up if there is rising damp or other patent defect, ie. if hte building is obviously defective in some way.
If you wanted to take it further you could either offer an archtiects Inspection Report or allow a prospective purchaser's archtiect to undertake an inspection of the premises.

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In relation to their seeking of the Opinions, it is my experience that Engineers are seldom competent to address the minutiae of planning matters of a domestic scale and are competent to certify in relation to structure and services, but not the rest of the building.

It may be that nothing that has been built complies with current standards at which point you should consider offering the assrances as described above.
While ir may be a buyer's market, you cannot do the impossible and roll back time to build to todays standards thirty years ago.

BER Cert:

You will also be required ot furnish a BER Certificate in relation to the building.
I would expect this to come out quite low, around D, E or possibly F.
You could offer to upgrade the building prior to sale.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                    as a defence or support - in and of      itself  -         should       legal        action    be      taken.
Competent legal and building professionals should be asked to advise in                                    Real Life with rights to inspect and     issue         reports    on     the         matters    at      hand.


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## Roundy# (5 Nov 2010)

Onq sensible advice as always.....thanks


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## onq (5 Nov 2010)

You're very welcome and thanks for your comments.

The site owner is happiest when he sees the forums working as intended.
It would be great if you could give us feedback and tell us how this goes.
I'm sure there are many people in a similar boat to yours around this time.

ONQ.


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## Roundy# (18 Nov 2010)

Purchasers engineer completed a certificate of complaince with planning - he noted that the driveway was different from the original planning but deemed that as this had not been contested by the local authority, and that the change was not major to that of the original planning, that retention wasn't required. Having mentioned this in the report, he suggests that it's enough to make the purchaser aware of this.

Puchaser and his solicitor were happy to proceed and contracts have been signed.


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## onq (18 Nov 2010)

Good result Roundy# and thanks for the feedback.

As a general rule being open and honest about such matters is sound practice. 

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                as a defence or support -    in     and    of        itself  -         should       legal           action        be           taken.
Competent legal and building professionals should be asked to advise in                                                Real Life with rights to       inspect     and       issue         reports    on     the               matters    at           hand.


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