Planning law in property transactions - Building regulation ...

Learning Outcomes

This article outlines building regulation control in property transactions, including:

• Circumstances requiring building regulation approval in property transactions
• Distinction between building regulations and planning permission
• Compliance processes and enforcement
• Implications of non-compliance for buyers, sellers, and lenders in England and Wales
• Acceptable evidence of compliance, including completion/final certificates and competent person scheme certificates
• Options where documentation is missing, including regularisation or indemnity insurance
• Key due diligence steps and lender requirements
• Application of these principles to SQE1-style scenarios

SQE1 Syllabus

For SQE1, you are required to understand building regulation control as it applies to property transactions, with a focus on 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
• Evidence of compliance: completion/final certificates and competent person scheme certificates
• Time limits for building control enforcement and prosecutions, and availability of injunctions
• Regularisation and indemnity insurance as practical responses to missing approvals
• The roles of local authority building control and approved inspectors/registered building control approvers

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 regulations operate under the Building Act 1984 and the Building Regulations 2010 (as amended). They apply to “building work” and some changes of use, even where planning permission is unnecessary or “permitted development.” Private-sector building control can be provided by approved inspectors (now known in England as registered building control approvers) alongside local authority building control.

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. The regime focuses on technical matters such as structural stability (Part A), fire safety (Part B), site preparation and moisture (Part C), toxic substances (Part D), sound insulation (Part E), ventilation (Part F), hygiene and drainage (Part G/H), electrical safety in dwellings (Part P), energy efficiency (Part L), and accessibility (Part M), among others.

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. Building regulations also extend to certain “material changes of use” (for example, converting a building into a dwelling), where compliance with specific Parts is triggered even if there is limited physical building work.

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.

In practice, the scope is broader than planning control. Approval is typically needed for:

• Material alterations to a building’s structure or services (e.g., new steel beams, reconfiguring drainage)
• Works affecting fire safety or escape routes
• Conversions (e.g., garage-to-habitable room), which must meet relevant Parts for dwellings
• Notifiable electrical works in dwellings (Part P) unless self-certified by a competent person
• Replacement windows and doors (Part L and Part N/K as applicable), often certified through FENSA or similar schemes
• Installation of heating appliances and fuel storage systems (e.g., Gas Safe, OFTEC)

Common domestic exemptions include:

• Small detached single-storey buildings (e.g., a shed) not exceeding specific floor areas and distances from boundaries
• Porches and conservatories under a size threshold that are thermally separated from the dwelling and do not affect existing doors/windows, subject to conditions
• Like-for-like repairs and maintenance that do not affect structure, fire safety or services

Where there is a “material change of use” (such as converting a building into flats or creating a separate dwelling), specific compliance requirements are triggered even without obvious structural work.

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.

Key Term: full plans application
Route where detailed drawings/specifications are submitted for formal approval before or during construction, followed by staged inspections.

A full plans decision is normally issued within a prescribed period (often 5 weeks, extendable by agreement). If work does not commence within three years of depositing full plans, the deposit may lapse and a fresh submission can be required. Approval of plans does not remove the need to build as inspected; on-site non-compliance can still be challenged.

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: building notice
Simplified notification route (mainly for domestic/minor works) with fewer pre-approval checks but full responsibility to comply on site.

A building notice is usually unsuitable for complex works and cannot be used for certain buildings or uses (e.g., many non-domestic premises where fire safety legislation applies). Because there is no formal plan approval, greater reliance is placed on on-site inspections, increasing the risk of remedial requirements.

Alongside local authority building control, private-sector inspectors can be engaged.

Key Term: approved inspector (registered building control approver)
Private building control professional/body carrying out plans checks and inspections; in England, now registered with the Building Safety Regulator. Works proceed under an initial notice instead of a local authority application.

Where an approved inspector is appointed, an initial notice is lodged with the local authority before work starts. On satisfactory completion, the inspector issues a final certificate, which the local authority records.

Key Term: final certificate
Certificate issued by an approved inspector/registered building control approver confirming compliance on completion of works notified under an initial notice.

Self-certification is also significant for certain trades.

Key Term: competent person scheme
Government-authorised schemes allowing registered contractors (e.g., FENSA for glazing, Gas Safe for gas, NICEIC/NAPIT for electrical) to self-certify compliance and notify the local authority.

Compliance and Inspections

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

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

Typical inspection stages include commencement, substructure excavations, damp-proof course, drainage (before backfilling), structural elements (e.g., steels, roof structure), thermal elements (insulation), and final completion. Where a competent person scheme is used, the installer issues a self-certification certificate to the owner and the scheme body notifies the local authority. Buyers and lenders commonly accept such scheme certificates as evidence of compliance for the relevant work.

A completion certificate (local authority) or final certificate (approved inspector/registered building control approver) is essential in property transactions. Buyers and lenders will require evidence that all works have been properly approved and completed. Absence of certificates does not necessarily mean non-compliance, but it increases risk and can impede lending.

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.

In legal terms, the power to require removal or alteration arises under section 36 Building Act 1984 (often colloquially called an enforcement notice). A prosecution can be brought under section 35 within 2 years. Critically, even after the 12-month period for serving a section 36 notice or the 2-year period for prosecution, an injunction can be sought at any time to address dangerous or significantly non-compliant work. The current owner can be required to comply, regardless of who carried out the work. Case law supports the continued availability of injunctive relief beyond the statutory notice period (see, for example, the approach recognised in practice following Cottingham v Attey Bower).

Non-compliance can delay or jeopardize property sales. Lenders may refuse to lend, and buyers may withdraw or require indemnity insurance. There are also practical risks: non-compliant works may present safety issues and lead to costly remedial measures, affecting marketability.

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.

It is common for small domestic projects to be permitted development yet still require building regulations approval (e.g., many porches, conservatories, or internal structural alterations). Conversely, some interior works needing building regulations approval may not constitute “development” and so fall outside planning control. Always consider both regimes independently, and remember private title controls (such as restrictive covenants) are also separate issues.

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

Regularisation is only available for unauthorised works carried out after a specified date (commonly from November 1985) and often requires exposure of concealed work for inspection and remedial works. It addresses compliance going forward; it does not remove any historic criminal liability for the original breach. Indemnity insurance is widely used where the enforcement window has expired for notices/prosecutions, but insurers typically exclude injuries, business interruption and latent defect remediation unless and until the authority takes formal action. To preserve cover, avoid contacting the local authority about the breach.

Competent person scheme certificates (e.g., FENSA for replacement windows, Gas Safe for boiler installations, NICEIC/NAPIT for electrical work) are acceptable evidence of compliance for those specific works. Ensure names, addresses and dates match the property and works. Lenders often expect to see either building control certificates or appropriate competent person certificates, and may retain part of the advance or decline to lend if documentation is absent. Failure by a buyer’s solicitor to obtain or advise on missing consents and certificates may amount to negligence.

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.

Worked Example 1.3

A commercial unit had an internal steel frame installed four years ago. No local authority certificate exists, but the seller provides a final certificate from an approved inspector. Is further evidence required?

Answer:
Usually not. A valid final certificate from the approved inspector/registered building control approver evidences compliance for the notified works. The buyer’s solicitor should verify the initial notice was lodged, the final certificate relates to the same works and address, and that the inspector was properly approved/registered at the time.

Worked Example 1.4

A house had replacement windows installed six years ago. There is no completion certificate and no FENSA certificate. What are the options?

Answer:
Ask the seller for alternative competent person evidence (e.g., Certass) or a copy of the notification to building control if any. If none exists, consider indemnity insurance (without contacting the local authority), a price reduction, or, less commonly, retrospective regularisation (which may involve intrusive inspection and is not always available for such works).

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.

For clarity, the 12‑month period refers to the local authority’s power under section 36 Building Act 1984 to require alteration or removal; prosecutions under section 35 are generally within 2 years in the Magistrates’ Court. The availability of injunctions means that significant or dangerous non-compliance can still be addressed long after those periods. Responsibility generally lies with the current owner in possession at the time of enforcement.

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.

Policies typically:

• Cover legal and compliance costs if the authority takes action
• Exclude the cost of voluntary remedial works where no action has been taken
• Require that no approach is made to the local authority before cover is put in place
• Are property-specific and may be assignable to successors in title and lenders

Where works appear unsafe, insurance is not a substitute for making the building safe; a surveyor’s advice and remedial works may be necessary, and lenders may insist on this or retain funds pending remedy.

Summary

Building regulation control is a separate legal requirement from planning permission. Most building works require approval and a completion or final certificate, or a competent person certificate. Non-compliance can lead to enforcement action, prosecution, an injunction at any time for unsafe works, or practical problems in property transactions. Buyers and lenders will require evidence of compliance. Where documents are missing, consider regularisation (with possible opening-up works), indemnity insurance to manage enforcement risk, and negotiation on price or remedial works. Solicitors must carry out and advise on appropriate checks; failure may expose them to negligence claims.

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 or final certificate (or competent person scheme certificate).
• The approval process may be via full plans or building notice with local authority, or via an approved inspector/registered building control approver.
• Local authorities can enforce compliance by notice under the Building Act 1984, prosecution, or injunction (no time limit for unsafe works).
• Buyers and lenders require evidence of compliance in property transactions; absence of documentation can affect lending and marketability.
• Regularisation may be available for post‑1985 works but may require opening up and remedial works; it does not erase the historic breach.
• Indemnity insurance may be used if documentation is missing, but does not cover all risks and should not be jeopardised by contacting the local authority.
• Competent person schemes (e.g., FENSA, Gas Safe, NICEIC/NAPIT) provide acceptable alternative evidence for certain types of work.

Key Terms and Concepts

• building regulations
• planning permission
• building regulation approval
• completion certificate
• enforcement notice
• regularisation certificate
• indemnity insurance
• full plans application
• building notice
• approved inspector (registered building control approver)
• final certificate
• competent person scheme