The Conveyancing Committee is publishing guidelines for planning searches.
There are no current guidelines setting out what a planning search should cover. There can also be confusion as to what a planning search should include. The extent of the search can vary based on the law searcher used and / or the local authority involved. As such, the results can differ. A routine planning search is relatively simple and limited in the results returned. It is not a replacement for proper due diligence to be completed by suitably qualified advisors.
A variety of practical difficulties arise in relation to planning searches. Whilst planning authorities are obliged to maintain certain registers, the manner in which these registers are maintained, by the different local authorities, varies widely. It can be very difficult to extract information from registers that are handwritten.
Notwithstanding that section 7(4) of the Planning & Development Act 2000 provides for the register to incorporate a map, to assist in tracing any entry, it is not always possible to search by map. Quite often the maps can be vague and make searching in this way unreliable. Properly bonded searches are the safest way to have a planning search completed.
It is now commonplace for most local authorities to upload new application details to their websites, to encourage online searches. Not all authorities have historic information and only some are uploading historic information to their website. It is the view of the Committee that such online searches are currently questionable for the purpose of reliance, particularly given that there is currently no statutory basis for online planning registers.
Although the circumstances of each transaction may require a different approach from time to time, the Committee has set out below some guidance as to what should be requested as part of a planning search and when a search is necessary.
Purchasers’ solicitors should bear in mind that their clients are deemed to be on notice of matters appearing on the planning register (General Condition 35(b) of the Conditions of Sale 2017 Edition and General Condition 31(b) of the Conditions of Sale 2019 Edition).
A planning search is not intended to provide the sort of detailed information that some people may require before buying a property for investment purposes. It is most certainly not a substitute for the detailed checks that a property developer should undertake before buying land for a development or re-development. Persons buying land for development / re-development should have their appropriate technical advisors carry out more intensive investigations and should not rely on a routine planning search. In such circumstances, the solicitor acting for a developer purchasing a property should advise the client (in writing) that a routine planning search will not suffice and that the appropriate due diligence pre-contract should be carried out by the relevant technical advisors and proper report procured.
This practice note is not intended to cover all types of commercial properties but the Committee considers it appropriate to mention, in passing, that solicitors acting for persons buying a farm or tracts of land should advise their client to check whether the property is in an area affected by any specific designation in force at that time, including but not limited to Special Protection Areas, Special Areas of Conservation and Natural Heritage Areas and / or has any national monuments or protected structures located on it.
For large scale investments, it may be appropriate to have a full technical survey completed.
When acting for the purchaser of a commercial property or of a house which the purchaser intends to extend or redevelop, solicitors should advise their client (in writing) that the safest course is to instruct an architect or engineer with experience in property development to carry out a survey and searches when preparing a report for the purchaser, taking into account the future intended development.
A routine planning search is only really appropriate for residential sales / purchases. It should be made clear to purchasers that a planning search is not intended to be an assessment of the local area. It will not necessarily tell if there are proposed developments in the vicinity that the purchaser might consider undesirable. A decision to buy a property and to check out an area is a matter for the purchaser to make based on their own enquiries and this is not something that is, or should become part of, the role of a purchaser’s solicitor.
Items to cover
When acting for a purchaser of a dwelling house and in other cases where the solicitor deems it appropriate, a solicitor should have a planning search carried out by a competent person that deals with the following items:
- Details of all planning applications and permissions granted and / or refused in relation to the property.
- Details of all enforcement proceedings taken or other notices served under the planning acts in relation to the property.
- The zoning of the area in which the property is located according to the development plan or local area plan (if any).
- Any road schemes that do or might affect the property.
- Any compulsory purchase orders that affect the property.
- Whether the property is a protected structure and / or declared to be an area of specific designation under the planning acts.
- Any compensation payments relating to the property and / or agreements restricting or regulating the development of the property.
- Details of any tree preservation orders and / or public rights of way.
The Purchaser should carry out a planning search pre-contract.
Updating on completion
It is also the view of the Committee that planning searches need not be updated for completion, as a matter of course, unless there is good reason for doing so. Examples of circumstances that may merit updated searches include, but are in no way limited to, occasions where there is concern as to potential enforcement, delays or passage of time between signing and completion, complex transactions and / or actual notice of matters that justify an updated search. It is incumbent upon each practitioner to satisfy themselves in each case as to the correct approach to be taken.
It is also the view of the Committee that, where a property being purchased is a single residential dwelling on the first sale by the developer on completion of the dwelling where the opinions on compliance and certification documentation being furnished on closing are based on an inspection of the dwelling within the six month period prior to completion, there is usually no need for the purchaser’s solicitor to make specific planning searches unless on notice of a particular concern.
If in doubt as to what your law searchers (or other competent person carrying out the search) address in their enquiries, you should seek verification from them and ensure that the items listed above are included.