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
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.
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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.
