Planning law in property transactions - Building regulation control

Learning Outcomes

After reading this article, you will be able to identify when building regulation approval is required in property transactions, distinguish building regulations from planning permission, explain the process for compliance and enforcement, and apply these principles to SQE1-style scenarios. You will also understand the implications of non-compliance for buyers, sellers, and lenders in England and Wales.

SQE1 Syllabus

For SQE1, you are required to understand building regulation control as it applies to property transactions. This article covers the following syllabus points:

  • The distinction between planning permission and building regulation approval
  • When building regulation approval is required for property works
  • The process for obtaining building regulation approval
  • The consequences of non-compliance, including enforcement and remedies
  • The relevance of building regulation control in property transactions, including due diligence for buyers and lenders

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the main difference between planning permission and building regulation approval?
  2. Name two types of building work that require building regulation approval.
  3. What is a completion certificate and why is it important in a property transaction?
  4. What enforcement action can a local authority take if building regulations are breached?
  5. True or false? Obtaining planning permission automatically means building regulation approval is not required.

Introduction

Building regulation control is a core aspect of property transactions in England and Wales. It ensures that building works meet minimum standards for safety, health, energy efficiency, and accessibility. For SQE1, you must be able to identify when building regulation approval is required, understand the process for compliance, and explain the consequences of non-compliance in the context of property sales and purchases.

Building Regulation Control: Purpose and Scope

Building regulations are statutory rules that set minimum standards for the design and construction of buildings. They apply to new buildings, extensions, and many alterations to existing buildings.

Key Term: building regulations
Statutory requirements setting minimum standards for construction, safety, energy efficiency, and accessibility in buildings.

Building regulation control is governed primarily by the Building Act 1984 and the Building Regulations 2010 (as amended). These regulations are separate from planning permission, which deals with the use and appearance of land and buildings.

Key Term: planning permission
Formal approval from the local planning authority for development or material change of use of land or buildings.

When Is Building Regulation Approval Required?

Most building work requires building regulation approval, including:

  • Construction of new buildings
  • Extensions (e.g., adding a room or conservatory)
  • Structural alterations (e.g., removing a load-bearing wall)
  • Loft conversions
  • Installation or replacement of windows, boilers, or electrical systems

Some minor works, such as like-for-like repairs or certain small detached buildings, may be exempt.

Key Term: building regulation approval
Formal confirmation from a local authority or approved inspector that proposed building works comply with building regulations.

The Approval Process

There are two main routes for obtaining building regulation approval:

Full Plans Application

  • Detailed plans and specifications are submitted to the local authority.
  • The authority checks compliance and approves the plans, sometimes with conditions.
  • Inspections are carried out at key stages of the work.

Building Notice Procedure

  • A simpler process for minor works.
  • No detailed plans required, but work must still comply.
  • Greater risk for the owner, as non-compliant work may need to be altered or removed.

Key Term: completion certificate
Document issued by the local authority or approved inspector confirming that building works comply with building regulations.

Compliance and Inspections

During construction, building control officers (from the local authority or an approved inspector) inspect the works at key stages (e.g., foundations, damp-proofing, final completion). If the work is satisfactory, a completion certificate is issued.

A completion certificate is essential in property transactions. Buyers and lenders will require evidence that all works have been properly approved and completed.

Enforcement and Consequences of Non-Compliance

If building works are carried out without approval or do not comply with building regulations, the local authority can take enforcement action:

  • Serve an enforcement notice requiring alteration or removal of non-compliant work (within 12 months of completion)
  • Prosecute the owner or builder in the Magistrates' Court (within 2 years of completion)
  • Apply for an injunction at any time if the works are unsafe

Key Term: enforcement notice
Formal notice issued by a local authority requiring non-compliant building work to be altered or removed.

Non-compliance can delay or jeopardize property sales. Lenders may refuse to lend, and buyers may withdraw or require indemnity insurance.

Building Regulations vs Planning Permission

Building regulation approval and planning permission are separate requirements. Obtaining one does not remove the need for the other.

  • Planning permission: Focuses on the use, appearance, and impact of development.
  • Building regulations: Focus on technical standards for construction and safety.

Key Term: regularisation certificate
Retrospective approval issued by a local authority confirming that unauthorised building works now comply with building regulations.

Due Diligence in Property Transactions

Buyers' solicitors must check that all relevant works have building regulation approval and a completion certificate. This is done by:

  • Reviewing replies to pre-contract enquiries
  • Checking the local authority search (CON29)
  • Requesting copies of approvals and certificates from the seller

If documentation is missing, options include:

  • Requesting a regularisation certificate (may require opening up works)
  • Obtaining indemnity insurance (covers enforcement risk, but not personal injury or business interruption)
  • Negotiating a price reduction

Worked Example 1.1

A seller has converted a garage into a living room three years ago but cannot produce a completion certificate. The buyer's solicitor discovers this during pre-contract enquiries. What should the buyer's solicitor do?

Answer: The solicitor should request evidence of building regulation approval and a completion certificate. If unavailable, the solicitor may advise the buyer to request a regularisation certificate or indemnity insurance, or negotiate a price reduction to reflect the risk.

Worked Example 1.2

A buyer purchases a house with a recently built extension. After completion, the local authority serves an enforcement notice requiring the extension to be altered. The buyer did not check for a completion certificate. Who is responsible?

Answer: The buyer is responsible for complying with the enforcement notice. The buyer may have a claim against the seller for misrepresentation if the seller gave misleading replies, or against their own solicitor for negligence if proper checks were not made.

Enforcement Time Limits

  • Enforcement notice: Must be served within 12 months of completion of the works.
  • Prosecution: Must be brought within 2 years of completion.
  • Injunction: No time limit if the works are unsafe.

Indemnity Insurance

If building regulation approval or a completion certificate is missing, indemnity insurance may be available. This covers the risk of enforcement action but will not cover personal injury or business interruption.

Key Term: indemnity insurance
Insurance policy covering the risk of enforcement action for lack of building regulation approval or completion certificate.

Summary

Building regulation control is a separate legal requirement from planning permission. Most building works require approval and a completion certificate. Non-compliance can lead to enforcement action, prosecution, or problems in property transactions. Buyers and lenders will require evidence of compliance. Indemnity insurance may be used to manage risk if documentation is missing.

Key Point Checklist

This article has covered the following key knowledge points:

  • Building regulation control is separate from planning permission and focuses on construction standards and safety.
  • Most building works require building regulation approval and a completion certificate.
  • The approval process may be via full plans or building notice.
  • Local authorities can enforce compliance by notice, prosecution, or injunction.
  • Buyers and lenders require evidence of compliance in property transactions.
  • Indemnity insurance may be used if documentation is missing, but does not cover all risks.

Key Terms and Concepts

  • building regulations
  • planning permission
  • building regulation approval
  • completion certificate
  • enforcement notice
  • regularisation certificate
  • indemnity insurance
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