This article deals with the perils of selling a house without planning permission for works carried out. In this piece we look at what options are available.
The removal van was booked and champagne on ice ready to celebrate the start of a new chapter. Our clients were surprised that planning permission was required for historic works carried out at their property. And that this could potentially scupper their house sale.
As background, I was contacted recently by someone in the final stages of selling their home. They were requested to provide proof that they had (or didn’t need) planning permission for works they carried out. They approached their Local Planning Authority (LPA) who convinced them to submit a pre-application enquiry, then after several weeks were told planning permission was required and that they MUST apply for retrospective planning permission or a Certificate of Lawfulness of Existing Use or Development (CLEUD). Naturally they were anxious and confused.
In this case the works had been carried out 14 years ago. Whilst having the relevant paperwork in place is preferred, there are a few things to keep in mind. The salient point is the length of time the works had been completed.
In most cases an authorised development becomes immune from enforcement action if no action is taken within:
• 4 years of substantial completion for a breach of control consisting of operational development, i.e. building works;
• 4 years for an authorised change of use to a single dwelling;
• 10 years for any other breach of planning control (essentially other change of use).
If a development has been carried out in excess of the above timeframes anyone can apply for a CLEUD. A CLEUD seeks to prove that the development or use has existed for the required period of time. The onus lies with the applicant to provide precise and unambiguous proof. If the LPA have no evidence to the contrary the balance of probabilities lies with the applicant. The LPA should grant a certificate.
The Council cannot require someone to apply for a CLEUD. If you have evidence to support the length of time a development has existed enforcement action should not be taken just because you haven’t applied for a CLEUD.
A CLEUD is the formal legal document to confirm the development needed permission, however if over the timescale for enforcement it’s considered lawful. The process can take as long as a planning application to determine. Requiring the same planning fee as a new proposal.
There is another option if you’ve carried out works but have not exceeded the ‘immunity’ timescales above. Retrospective planning permission can be applied for. However just because your extension maybe build doesn’t mean it will automatically be granted. The LPA will consider the merits of the scheme and if it doesn’t comply with National or Local guidelines/policy then it can be refused.
In terms of a house sale there maybe other ways to progress without going through the CLEUD or retrospective planning application routes. For instance, I know of cases where an Indemnity Insurance to cover the works has been sufficient to allow a sale to complete. This is generally in cases where the works exceed the ‘immunity’ timescales and therefore enforcement action should not be progressed by the LPA.
I’m in no way advocating development without the relevant consents as it can become a lot more complicated than the example I’ve used. It’s not illegal to carried out development without the relevant consents (unless it’s a Listed Building). However scenarios such as this happen regularly so if you find yourself in a situation like this consider your options.
We’ve also produced a Practical Guide about Certificate of Lawful Use or Development (CLEUD) offering information on the basics of this process.