Taking on a new premise, or land, is often a risk. In this article I just want to highlight the steps that, working together, the Holmes & Hills Commercial Property and Planning teams undertake to ensure that a new tenant, or prospective landowner, understands what they are looking to take up/buy and can make an appropriate assessment as to whether (or not) to proceed with the transaction.
The importance of adequate searches
As context, carrying out adequate searches and enquiries of the property is important for a buyer (or incoming tenant) to ensure that it will:
That said, if a breach of planning control has been identified a prospective tenant/buyer can ask the landowner to:
Indeed, if a tenant/buyer will not be able to use the property for the intended purposes, it may have to factor in the likely costs, time and chances of success of making a planning application to authorise its future uses/operations. Otherwise, they may decide not to proceed with the sale. These issues are also important for a landowner to understand so that they are clear on what is being sold and its value in the market.
As part of a title investigation we will check whether there any planning-related defects in the title that could adversely affect the buyer, e.g.:
The importance of a Local Land Charges search
A Local Land Charges search should also be undertaken which will reveal if there are any:
Once we have been provided with copies of any relevant planning permission and other consents (to include listed building consent, consent for the display of advertisements and certificates of lawful use) we will investigate which consents:
If there is an existing outline planning permission, or other planning permission, with conditions which need to be satisfied before development can proceed a check will be undertaken to see what has been done to obtain approval of reserved matters and/or satisfaction of those conditions.
In relation to the use of the building we will enquire what the existing use of the property is, when it started and how that use is authorised in planning terms.
The importance of a physical property inspection
We do recommend that a physical inspection of the property is carried out because this can reveal planning issues which may not be apparent from other searches. Examples being:
Lastly, If the tenant or buyer is taking up/purchasing the property with the benefit of an unimplemented or partially implemented planning permission and/or listed building consent, care should be taken to ensure it has the necessary copyright in the plans approved as part of those consents. While planning permissions and listed building consents run with the land and benefit anyone with control over the land, this does not mean that the approved design drawings can be used by anyone. So assignment of, or a written licence to use, the copyright should be obtained before a tenant/buyer uses approved plans for its own purposes.
Hopefully the above will illustrate the need for a thorough approach to investigating “planning title” – and if there are issues then it is not uncommon for the Planning team to help to resolve them or, at the very least, provide advice as to the risk that such ‘wrinkles’ may carry.
I should add that the Commercial Property team also look into private law rights/issues (e.g. any restrictive covenants that prohibit or restrict development) as well as ensure that appropriate Building Regulations approvals/certificates have been obtained. All of which being to ensure that people understand what is being offered to them as tenant or purchaser.”
Posted 21/08/2019 by:
Partner in Planning & Development Team
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