We quite often encounter enquiries relating to Planning and Building Regulation issues during the course of a Conveyancing Transaction, whether it be a sale or a purchase. It can be confusing for homeowners to know exactly what they should be getting and so it is not uncommon to come across a matter where the correct consents have not been obtained and/or provided. If a homeowner is ever in doubt, they should raise it with the Local Authority and any Specialist Installer for Gas, Electricity & double glazing. The Planning Portal website is also extremely helpful, please go to https://www.planningportal.co.uk/
For the purpose of this guide we will focus on building regulations which applies to work which involves the design and construction of new buildings but also for any extensions and alteration to any existing buildings. It also applies to any demolition or fitting of services and equipment in connection with the property.
The most common ones that will be subject to building regulations that we encounter frequently in Residential Conveyancing are: -
- Removal of a load bearing wall
- Removal of a Chimney
- Repairs and/or replacement of a roof
- Some Conservatories
- Replacement Window
- Gas Installations
- Electrical Installations
To make it even more confusing for homeowners, various self-certification has been introduced over the recent years which negates the need of applying to the Local Authority for building regulations.
FENSA has been around now for almost 18 years, after being introduced on the 1st April 2002. Another certification instead of FENSA is called CERTASS. Although FENSA is better known, both are satisfactory.
They apply to any new or replacement double glazing and should be provided by your Installer, if the installer is FENSA/CERTASS registered. The Installer must also notify the building control department at the Local Authority of the work. In the event the Installer is not registered then you will need to apply for building regulations which will involve the work being inspected by building control and once satisfied they will issue a completion certificate.
Installation of Gas, Oil or Solid Fuel Appliances
Any installation of this type must be done by a CORGI, OFTAL, NAPIT or BESCAL or HETAS, APHCCL registered engineer who will provide a certificate for the work, otherwise again, you will have to apply for building regulations consent.
This was introduced on 1st January 2005 and any electrical work must be carried out by a qualified electrician who is registered with an organisation such as NICEIC, NAPIT or ELESCA. They must then issue you with a Part P certificate. If they cannot provide the Part P certificate then you must apply for building regulations consent.
If building regulations has been granted and if an Installer has notified the Authority of the work then it is likely that evidence of this would be revealed upon a Buyers Local Search. Although this cannot be guaranteed, Conveyancers often now treat this as sufficient evidence that the correct compliance has been followed, even if the actual certificates cannot be located. It is, however advisable for all homeowners to make sure they keep all certificates safe as they will be needed if the Property is ever sold and if they are insisted upon. If certificates have been issued for any work then duplicates can often be obtained but this would be at the homeowner’s time and expense.
What to do if you do not have building regulations and/or compliance certificate
Unlike planning, there isn’t any real time limit on enforcement in connection with a breach of building regulations. Saying that however, the Local Authority can only service a Section 36 Notice within 12 months of the work being completed, if they discover a breach. Any action after that, means they would have to apply to the Court for an injunction. It may be unlikely for that to happen but if applied for the Court would have to decide if it is within the public interest to grant it and if it represented a danger to public safety, if it does then it could well be granted. There is no time limit on the Local Authority’s right to apply for an injunction.
An option would be for the homeowner to apply to the Local Authority for Retrospective Consent for building regulations. This would involve an inspector going out to visit the property in order to inspect the work. This application is by no means a sure way of automatically getting a completion certificate. If the Inspector is not happy to pass the work then the homeowner will have no choice but to get any work completed and/or redone/improved then have it re-inspected again to see if building control will be prepared to pass it. There is always the risk that the work will not be compliant and of that is the case a Section 36 Notice will be issued.
For those reasons, a homeowner may be reluctant to do this during the course of the Conveyancing transaction, due to fact that the work may not be compliant and therefore it could be expensive and timely to resolve any issue.
As an alternative option, a Lack of Building Regulation policy may be offered. For a standard policy, the work must have been completed at least 12 months ago. It is also important that there is no application made, pending and/or refused and that there is no notice of any impending enforcement action. There may be other factors to consider but anything which does not satisfy the usual requirement, would have to be referred back for a more bespoke policy.
This policy is usually paid for by the Seller and the advantage of this type of policy is that it is quick to obtain and it is usually at a low cost. As it is so quick to obtain it doesn’t tend to delay the transaction itself as it is something which is provided to the buyer upon completion.
There are some important things to bear in mind when this type of Indemnity is provided and they are as follows: -
- It covers enforcement only
- It is not a guarantee or warranty
- It does not cover workmanship and if concerned you should have it inspected by an appropriate specialist
- No contact can be made with the Local Authority as this would invalidate the policy
- It cannot be disclosed to any third party unless during the course of a Conveyancing transaction if the property is sold at a later date e.g. your buyers, otherwise you will invalidate the policy
If this affects you during your Conveyancing transaction then your advisor will discuss any issues with you and will look at the options as to the best way for you to proceed.