Monday, 17 February 2014

Law Society Revises Local Authority Content in Line with New Risks

Just over six months ago the Law Society consulted on proposed changes to the CON 29 and CON 29O forms, also know as ‘Local Authority Searches’ and ‘Conveyancing Searches’. Local authority searches are a vital part of the conveyancing process and are used by conveyancing solicitors to request information about matters affecting a property, such as pending planning or building applications, nearby transport schemes and rights of way.
Preliminary negotiations about the proposed changes took  place between the Law Society,the Local Land Charges Institute and the Local Government Association. After a consultation,  feedback has now brought about changes to the forms that are due to be launched later this year.

The consultation paper provides interesting insight as to current issues and risks.  I maintain that there is a disconnect between what is included in the new search and the newly imposed obligations within the CML Handbook. Please note that I do not comment on all changes or elements of the consultation.

Inclusion of new enquiries 1.1(i) to (l) on CON 29 relating to : certificates of lawfulness of proposed works; heritage partnership agreements; listed building consent orders; local listed building consent orders.  

The inclusion of these new categories was agreed to by the legal authorities. The reference to certificates of lawfulness is to be further defined to apply to listed buildings.                
Inclusion of enquiry 1.2 (Green Deal) on CON 29

The Law Society faced a hard decision here.  Some respondents to the consultation felt the information provided in answer to a new enquiry about the existence of a green deal could be valuable to buyers. A small number thought this enquiry should be widened to include all 'green' technologies e.g. solar panels. Given the new CML Requirements introduced in these areas over the last two years, having the information on the search would have been a benefit to conveyancing lawyers and arguably would have reduced the chances of failure to comply with the Handbook, thus resulting in fewer claims.

Given the Law Society’s interest in protecting its members, it is surprising that the Law Society opted not to include any question relating to Green Deals.

Many local authorities were concerned about how they would find out whether a property had a Green Deal. Several said that their answers would be only as good as the information supplied to them.  The Green Deal would not always be linked to a planning or building application, and most applications in enquiry 1.1 would not show the existence of a Green Deal. Search companies were also concerned about whether local authorities could answer this enquiry satisfactorily. I would have preferred the onus to rest  with the Local Authority.

The Law Society took the view that buyers should rely on the EPC as the main source of information about Green Deal improvements at a property. How many conveyancers are currently checking EPC’s for this risk.?                             
Inclusion of enquiry about assets of community value on CON 29

The following questions are now to be included:                     
(a)  Has the property been nominated as an asset of community value? If so:-
  (i)  Is it listed as an asset of community value and with effect from what date?
  (ii)  Was it excluded and placed on the “nominated but not listed” list?
  (iii)  Was it listed but the listing has expired and if so for what reason?
  (iv)  Is the Council reviewing or proposing to review the listing?
  (v)  Are there any subsisting appeals against the listing?
(b)  If the property is listed:
  (i)  Has the Council decided to apply to the Land Registry for an entry or cancellation of a    restriction in respect of listed land affecting the property?
  (ii)  Has the Council received a notice of disposal and if so when?
  (iii)  Has any community interest group requested to be treated as a bidder?
Drainage agreements and consents no longer be included on CON 29

There was overwhelming support for these enquiries to be deleted because local authorities no longer provide information about drainage agreements or consents, or have very little information about them. Of course, water companies are a more appropriate source for this information.

Insead, a new question will appear in relation to sustainable urban drainage systems (SUDS).     
SUDS include a range of structures and techniques aimed at draining surface water efficiently and sustainably.

Schedule 3 of the Flood and Water Management Act 2010 establishes SUDS Approval Bodies (SABs) in county or unitary local authorities, and gives those bodies statutory responsibility for approving the drainage aspect of construction work, with some exceptions. SABs must also adopt and maintain drainage systems that they approve where those systems serve more than one property. They can also voluntarily adopt drainage systems in other circumstances
SABs will be able to levy a maintenance charge on occupiers of premises and properties that are served by an adopted SUDS. It is likely that SUDS will become increasingly prevalent, particularly on new housing developments. Owners and occupiers of properties served by SUDS should be aware of any SUDS features within the boundary of their property so that they do not damage or build over those features. Moreover, owners and occupiers should find out who is responsible for collecting the maintenance charges so that they can find out the amount of the charge.
Proposed amendments to enquiry 3.5 (nearby railway schemes) on CON 29       
The suggested new question read as follows:      
Is the property (or will it be) within:
(a) 200 metres of the centre line of a proposed railway, tramway, light railway or monorail?
(b) 400 metres of the centre line of High Speed 1 or High Speed 2?
The specific reference to HS2 would set a precedent for the forms and could blight properties. The HS2 route is still subject to consultation and, as such, there was some suggestion that  the enquiry should say 'currently proposed route' or 'proposed centre line' of HS2 instead.

Another concern was  that the proposed question was not sufficiently 'futureproof'; referring specifically to HS1 and HS2 would mean that other major rail projects, such as Crossrail in London, should be specifically referred to.

The Law Society has re-drafted this enquiry. It no longer specifically refers to HS1 or to HS2, but instead asks whether there are any proposals for a railway, tramway, light railway or monorail within the local authority's boundary. The obvious objection that I have here arises when dealing with properties that are very close to a boundary. The Law Society address this concern (not wholly satisfactorily, in my opinion) by arguing that the accompanying guidance notes will refer to the need for conveyancing solicitors and/or buyers to make enquiries of other local authorities where necessary.

Inclusion of enquiry 3.7(g) (flood and coastal erosion risk management notices) on CON 29

In some quarters there was a suggestion that coastal erosion risk management should be an optional enquiry since not all local authorities are coastal,  but the Law Society decided to include this enquiry on the revised CON 29 form. Local authorities did not want this question included.  I suspect that future results to this question will say that enquiries should be made of other bodies.

Inclusion of enquiry 3.10 Re Community Infrastructure Levy (CIL) on CON 29

Although CIL is currently having the biggest impact on local authorities in London, it is applicable to England and Wales and is to be included in the new search format.
Inclusion of enquiry 20 relating to flood defence and land drainage consents on CON 29O
The proposed new question was : Has any flood defence or land drainage consent relating to the property been given or refused, or (if applicable) is it the subject of a pending application?
The responses to this question were similar to those provided in answer to the issue of flood and coastal erosion risk management notices. The outcome was the same in that the question is to be included, although, as stated previously, the answers may not be of any value if they simply direct you to contact the Environmental Agency.

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