When buying a site for development it is important to carry out a thorough investigation of the title to ensure that you acquire all of the land required to deliver the scheme. If potential problems with the title do arise, for example a strip of unregistered land or uncertainty over the precise boundary, then this can often be resolved by purchasing defective title insurance (DTI).
The need for through title investigation is also vital when applying for planning permission. Whist it is not necessary for an applicant to own all of the land within the development site, gaps in the title can still prevent a lawful planning permission from being granted unless the correct procedures are followed during the application process. These issues cannot be rectified with DTI.
The Requirement for Ownership Certificates
This is because Article 13 of the Town and Country Planning (Development Management Procedure) Order 2015 (the DMPO) makes it a legal requirement for an applicant to give notice of the application to anyone who owns land within the application site. It also requires that where the applicant has taken “reasonable steps” to identify all owners but cannot do so, the applicant must advertise the application by publishing notice in a local newspaper.
Planning applications must be accompanied by certificates, signed by the applicant, confirming that they have complied with the Article 13 notification requirement. Section 65 of the Town and Country Planning Act 1990 states that a planning application is not valid unless the correct ownership certificate has been completed and the required notices have been served.
Where the relevant certificates are submitted, the Local Planning Authority will usually take them at face value, and will not carry out their own investigation of the title to confirm that the correct notification has been given.
If an error is identified during the application process, for example a third-party landowner comes to light or an objector highlights a title discrepancy, then it can usually be rectified by pausing the application to give the required notifications. This may delay getting planning permission for a few weeks or months.
If there is an error in the notification requirements which goes unspotted and planning permission is granted, then that permission is potentially challengeable on judicial review grounds. This will usually require a challenge to be commenced in the High Court within the 6-week JR period.
However, it may be the case that planning permission is refused by the Council, and it is necessary to appeal that decision to the Secretary of State pursuant to section 78 Town and Country Planning Act 1990 (the TCPA). In those circumstances the Article 13 notification requirements apply equally to the appeal.
Consequences of an Incorrect Certificate
In a recent section 78 appeal against Swale Borough Council’s decision to refuse permission for 31 houses on the Isle of Sheppey, it came to light that there were unregistered strips of land within the application site. The relevant notification requirements had not been carried out at the original planning application stage but this was only spotted whilst the appellant and the Council were negotiating the s.106 agreement required as part of the appeal.
Section 79(6) of the TCPA, states that the Secretary of State can decline to determine an appeal if it becomes apparent that planning permission could not lawfully have been granted by the Council.
In the Swale case, the inspector concluded that the failure to carry out the correct notification requirements meant that the original planning application was not valid, and planning permission could not have lawfully been granted. The inspector has discretion to proceed with the appeal, but in that case she declined to do so, meaning that the appeal against the refusal of planning permission failed.
This may be catastrophic for a developer which has invested a considerable amount of time and money in preparing and submitting an application and then having to prepare for an appeal. Particularly where that outcome could have been avoided by carrying out a full and thorough title investigation at the outset and ensuring that the Article 13 requirements had been met.
DMH Stallard’s expert planning lawyers and consultants have the knowledge to help you comply with planning regulations. Contact the team today by email or call +44(0)3333 231580.
