It has recently been reported that conveyancers spend a staggering 53% of their working time chasing other people or being chased – the top cause of frustration, followed closely by the continual increase in the regulatory and administrative burden.

Planning law is one area adding to the workload of residential property lawyers. Planning law and its enforcement is undergoing significant changes including changes to enforcement periods in the event of a planning breach, change of use and permitted development.

Conveyancers need to understand the potential impact for clients (while being mindful of further impending changes).

Planning breaches can cause financial and practical problems for developers and prospective buyers, as Moat Housing, a housing association in Kent, is experiencing. It completed a 49-unit residential development in Sittingbourne, but the local authority planning committee has decided that some of them have been constructed 1.8m higher than the planning permission approvals. Existing homes are being overlooked.

The planning committee refutes the claims of the housing association that late changes to the planning application were ‘minor’. They were in fact significant changes. Discussions to overcome the issues are understood to be ongoing. If it can’t be resolved, the application would be refused and enforcement action could become necessary.

Enforcement

Enforcement action in England is one of several significant changes introduced under the Levelling-Up and Regeneration Act 2023. As of 25 April this year, local authorities now have 10 years in which they can take enforcement action for operational development or a change of use to a single dwelling. That’s more than double the previous 4 years.

For any other planning breaches, the enforcement action period remains 10 years.

Housing developers who have built residential homes in breach of planning control; and other sellers who have altered or added to their homes in breach of planning laws – even inadvertently - could have significant difficulties in selling their properties. Since the 2023 legislation came into effect, the risk of being served with an enforcement notice is 10 years – which means the seller could find it very difficult to sell a property if there has been a breach.

Residential conveyancers must ensure they undertake appropriate due diligence, scrutinising the nature of newbuilds; and any changes or addition made to existing homes in light of the planning documents. If potential breaches are identified, sellers need to understand the risks of enforcement action and the duration of that risk unless they can resolve matters with their local council. In the meantime, a sale may not be possible – particularly if an enforcement notice has already been served.

When advising property buyers of potential planning violations, they need to understand they would take on any continued risk of enforcement action. If there are serious breaches, buyers will be unwilling to take on liability; and it’s highly unlikely a mortgage lender will lend on a property subject to an enforcement notice or where breaches of planning control have been identified.

A detailed webinar on planning law and conveyancing is now available our Autumn Residential Property event here. As well as planning enforcement periods, it also covers matters including changes to use classes and permitted development, planning conditions, the Community Infrastructure Levy, s106 Agreements and changes in England and demolition of buildings and the Crooked House pub.