Whether you are dealing with an ongoing investigation or a formal enforcement notice, an outstanding planning enforcement issue can have an impact on your ability to sell or refinance a property. Potential buyers, lenders, conveyancing solicitors and property surveyors will all take an interest in an outstanding enforcement issue. Understanding how planning enforcement affects transactions and the steps that can be taken to resolve issues is particularly important when looking sell or refinance a property.
About Planning Enforcement
Planning enforcement arises when your Local Planning Authority (LPA) considers there has been a breach of planning control. There are various types of breach, which are covered in some detail in our related guide to planning enforcement time limits. Common breaches that can lead to enforcement include unauthorised changes of use, failure to comply with approved plans, breach of planning conditions or unauthorised development. In the event a breach is discovered LPAs have discretionary powers to take enforcement action, guided by whether enforcement action is proportionate and in the public interest. In practice, most breaches are initially dealt with informally via investigation and negotiation, but where this fails, formal action may be taken through the issue of an enforcement notice or stop notice.
Depending on the LPA and the case, obtaining details of informal investigations will usually require a detailed local authority search. However formal notices such as enforcement or stop notices are public record and will be available via your LPA’s planning enforcement register. Many LPAs publish this register on their website, such as this example from South Staffordshire Council. Details of enforcement notices are therefore usually freely available to any third party seeking to investigate your property.
Planning Enforcement, Mortgages & Refinancing
Planning enforcement can create immediate and practical challenges when refinancing or obtaining a mortgage because lenders typically regard outstanding planning enforcement issues as a problem with the title to a property. Conveyancers are usually required by the relevant lender’s conveyancing handbook to immediately report discovery of an outstanding enforcement issue to the lender, with most issuing similar rules to this rule from Barclays Bank.
Overall whether a lender will agree a new mortgage or other financing on a property with an outstanding planning enforcement issue depends on the details of the case and the lender. However, it’s clear that legal issues such as enforcement affecting a property can impact on mortgage conditions and approval.
The impact may also be negative in refinancing scenarios. Mortgage agreements can contain clauses requiring you to comply with town planning legislation, and under this scenario receiving an enforcement notice could cause issues with your current mortgage. Even where an existing lender maintains a facility, switching lenders, raising finance or releasing equity may not be possible until the enforcement issue is resolved.
In general, it’s best to proactively engage with any planning enforcement issue as soon as it comes to your attention to avoid issues with mortgages and refinancing. As well as the detail later in this guide, our related guide to planning enforcement notices contains detailed information on steps you can take if your property is subject to planning enforcement.
Planning Enforcement & Selling Your Property
Because enforcement action runs with the land, a new owner can become liable for breaches committed by a previous owner. Enforcement notices are also registered as local land charges on the new national Local Land Charges Register to warn buyers of potential liability. Understandably, potential buyers may be deterred by the prospect of inheriting liability for a historic planning enforcement issue.
Outstanding and historic planning enforcement issues may be discovered during the conveyancing search process, as buyers’ solicitors will carry out relevant searches with the new national register and relevant local authority. These local land charge searches provide potential purchasers with information on restrictions or charges affecting the property, such as tree preservation notices, enforcement notices and financial charges. Although responsibility for maintaining local land charge registers is being transferred to the new national register, some local authorities have not yet transferred their data and the old search mechanisms such as this example from Birmingham City Council still apply.
In practice, buyers may reassess whether they are willing to proceed, particularly if the enforcement issue is substantial. Even where a buyer remains willing, their mortgage lender may take a different view and refuse to lend, effectively preventing the sale from progressing.
If you are planning to sell your property in the near future and have an outstanding planning enforcement issue, the best strategy is to resolve the issue as quickly as possible to achieve a good result at sale.
Resolving Planning Enforcement Issues
If planning enforcement is affecting your ability to sell or refinance, the priority is to understand the nature of the breach and identify the most appropriate route to resolution. The most appropriate resolution depends on the nature of the breach, with some common solutions listed below.
Applying for Retrospective Planning Permission
Making a retrospective planning application allows you to receive approval for a development that has already been carried out. In minor or technical cases your LPA may encourage you to make a retrospective application to regularise the breach. Our guide to retrospective planning permission covers the requirements and process for this route in full.
Varying or Removing Conditions
In the event your breach relates to a planning condition, it is usually possible to submit a Section 73 application to apply to vary or remove the planning condition resulting the breach. See our related guide to changing planning permission for full information on making a Section 73 application.
Appealing on the Grounds Planning Permission Should be Granted (ground (a))
If you have already received a planning enforcement notice and the notice does not relate to a development for which planning permission was previously refused or an appeal dismissed in the last two years then you may be able to submit a Section 174 appeal against the enforcement notice under ground (a). A ground (a) appeal argues that planning permission should be granted for the development and creates a ‘deemed application’ for planning permission. If allowed by the Planning Inspector the development described in the enforcement notice will receive a grant of planning permission and the enforcement notice will be resolved. Aside from time limits, the main caveat is that the development concerned will need to be capable of being made acceptable in planning terms.
Our related guide to planning enforcement notices covers Section 174 and ground (a) appeals in detail. Many other strategies are available aside from these common solutions, as always the most effective strategy will depend on the specifics of the case and the LPA involved.
How a Planning Consultant Can Help
Planning enforcement issues can create barriers to selling or refinancing your property. An expert planning consultant can assess the enforcement case, advise on the best strategy to regularise the breach and work with your LPA to resolve the outstanding enforcement issue so you can get on with selling or refinancing without restriction.
At Holland Lloyd, we regularly advise homeowners, landowners and developers on resolving enforcement issues. Our Planning Support Service and Developers and Landowners Service provide clear, practical support to help you move forward with confidence and achieve your vision for your property. Contact us today for advice.
FAQs
Can planning enforcement stop me from selling my house?
Enforcement action is usually uncovered during conveyancing searches and may lead buyers or lenders to withdraw, renegotiate or delay the transaction.
Will a mortgage lender lend on a property with an enforcement notice?
Many lenders may refuse or restrict lending where enforcement action is unresolved, and conveyancing solicitors and valuation surveyors typically have instructions to report such issues when discovered.
Can I refinance a property with planning enforcement issues?
Refinancing may be difficult until the issue is resolved, for the same reasons that lending on a prospective property may be restricted. Depending on the terms of your mortgage contract enforcement action may cause issues with your current mortgage lender.
What’s the best way to resolve planning enforcement before selling?
The best way to resolve an enforcement issue always depends on the case. Contact us if you’re looking for an expert and practical solution to your planning enforcement issue.