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Archive for the ‘Planning Permission’ tag

Sleeping in the Office

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Malcolm Poynter

Malcolm Poynter – Partner

For some time it has been possible to convert office to residential accommodation with an automatic planning permission subject to Local Authority prior approval.   Prior approval does not take into account the desirability of the development. It ensures there are no adverse consequences for transport, highways, contamination and flooding.

This was a temporary measure to boost housing and expires on the 30th May 2016. The Government have now announced that this measure will be made permanent. There are some exemptions most notably in and around listed buildings or scheduled monuments. There are also geographic areas that have a general exemption. These exceptions will continue for the time being.

Further measures are in the pipeline including similar rules for light industrial buildings and launderettes.

For further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

Written by Malcolm Poynter

October 20th, 2015 at 3:24 pm

What a bind!

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When a deal is done in relation to property there will be a contract. What distinguishes property transactions from simple contracts is the ability of one party to bind future owners of the property. Malcolm Poynter, a commercial property specialist with law firm, Charles Lucas & Marshall discusses an example of this, restrictive covenants.

Malcolm Poynter

Malcolm Poynter – Partner

Properly drafted, a covenant on a property will bind each owner of that property. There are many examples of restrictive covenants, such as not to sell alcohol, not keep pigs and not to use the property for business.

The covenant must be restrictive ie say what you cannot do. If it is positive, such as to contribute to the maintenance of something or to keep something in repair, it is not directly enforceable against successors of the freehold. It is for this reason that flats tend to be dealt with by lease because each tenant is bound by the terms of the original lease in which the covenants will be set out.

Covenants that restrict building can obviously cause problems if you are proposing to develop your land. The wording of these covenants needs to be looked at very closely to decide what may not be done. For example, there was a case where a developer wanted to build a roadway which had to be adopted by the Highway Authority as a public road. A covenant not to erect anything on the land did not prevent the roadway being built but did prevent lamp posts being erected which meant the road could not be adopted and was therefore, in effect, prevented.

Some covenants allow building if ‘the Transferor’ approves the plans. Does this mean the original Transferor or the current owner of the land which has the benefit of the covenant? Difficulties can also arise if the person to give consent cannot be found or has died.

When faced with covenants restricting development sometimes you can establish that the covenants are invalid and may therefore be ignored.

Sometimes there are grounds for applying for the covenant to be modified or discharged by the Upper Tribunal (Lands Chamber). There are a variety of grounds upon which an application may be made.

Compensation may be payable but how is it calculated? The loss of the covenant may have a small effect on the value of the property with the benefit but, on the other hand, the person with the benefit may have been able to extract a significant payment from the developer for the covenant’s release. There is no rigid formula how compensation is to be calculated and, as the Courts love to say, each case depends on its own facts.

Further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

Written by Malcolm Poynter

April 10th, 2015 at 10:38 am

Ask the Question

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A recent case has highlighted the need to ‘ask the question’ when buying property. 

Ask the Question

Ask the Question

A purchaser of land claimed that the vendor had informed him orally that certain planning permissions had been granted in respect of the land without which the land was worth a great deal less. After the purchase was completed the purchaser discovered that in fact the planning permissions had not been granted. The vendor denied he had made such a representation but the court was inclined to accept the purchaser’s side of events. However, they also ruled that the purchaser had no remedy.

The reason for this was that the purchase contract included a provision, which is in virtually all property contracts, that representations by the vendor could not be relied on by the purchaser unless contained in a written response by the vendor’s solicitor to an enquiry raised by the purchaser’s solicitor.

The purchaser argued before the court that this was an unreasonable clause and should be struck out in light of the Unfair Contract Terms Act. The court held that the clause was effective and as this had not been confirmed by the vendor’s solicitors as required by the contract the purchaser had no remedy.

The moral of the story is if in doubt ask us to ask the question.

Further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

Written by Malcolm Poynter

November 8th, 2013 at 2:51 pm

Change of Use and Planning Permission

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The starting position is that if you propose to change the use of a property then planning permission will be required if that change is material. 

Malcolm Poynter

Malcolm Poynter – Managing Partner

However, there are many cases in which specific changes may be permitted without planning permission. The Town and Country Planning Use Classes Order groups’ various uses together into classes. Changing use within a class does not require planning permission, provided specific conditions are met. For example, retail shops are classed as A1 so generally you can change the use of a property from a fish mongers to a grocers without planning permission.

There are also various change of uses permitted under General Development Orders.

The most recent Permitted Development Rights came into effect on the 30th May. Change of use for agricultural buildings under 500sqm may often not require planning permission as such but prior approval is still required for specific issues.

Of particular significance are the new rules allowing many offices to be converted to residential use. Again there are strict conditions and prior approval on various issues is required.

When approval of specific issues is required, for example, in relation to transport or flood, the local authority may only object on the basis of those issues.

It should be borne in mind that even if the change of use does not require planning permission, if there are associated external building works then those works may themselves require planning permission.

Building Regulation approval may be required even if there are no physical works.

Further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

 

 

Written by Malcolm Poynter

October 24th, 2013 at 10:51 am