The conveyancer spotted that a property had been converted. An enquiry was raised asking for the planning permission. The seller’s response did not answer the question. Nothing further was done and the buyer was not warned.
Ten years later, when the owner tried to sell, the missing consent became his problem. He incurred more than £9,000 in building work and over £4,000 in legal fees before the sale could proceed.
This was not a case in which the planning issue was hidden so effectively that nobody could reasonably have found it. The issue had been identified during the purchase. The failure was allowing an unanswered enquiry to become a closed enquiry.
The £14,500 consequence of an unanswered planning enquiry
In Public Interest Decision PID 014, the Legal Ombudsman considered the purchase of a three bedroom maisonette completed in 2012. The property had previously been converted from multiple dwellings, but the necessary planning permission and Building Regulations approval could not be produced.
The conveyancer had recognised the conversion and asked the seller’s solicitors for the relevant documents. The response failed to provide them or answer the specific enquiry. The conveyancer did not follow up and did not explain the unresolved risk to the buyer.
The problem surfaced when the owner attempted to sell in 2022. The Ombudsman concluded that the remedial expenditure and additional legal fees would have been avoided if the buyer had been properly advised. It directed compensation of £14,000 for the financial loss and a further £500 for the resulting stress and inconvenience.
The decision provides a simple but powerful lesson: raising the right enquiry is not enough. A conveyancing file must show that the answer was obtained, the absence of an answer was pursued or the unresolved risk was reported clearly to the client.
What planning permission was the property relying on?
A physical conversion does not establish that planning permission was granted. Nor does the fact that the property has been occupied, separately assessed for council tax or previously mortgaged.
The conveyancer needs to establish what development or change of use occurred, when it occurred and the basis on which it was lawful. Depending on the facts, that may involve an express planning permission, permitted development rights, an existing lawful use or development certificate, or evidence that the relevant enforcement period has expired.
The question is particularly important where a house has been divided into flats, multiple units have been combined, an extension has been added or the use of the property has changed. What the estate agent calls the property is not evidence of its authorised planning use.
Planning permission and Building Regulations are not interchangeable
The Ombudsman decision involved both planning permission and Building Regulations approval, but they perform different functions.
Planning control is concerned principally with whether development or a change of use is acceptable. Building Regulations address standards governing how work is carried out, including matters such as structure, fire safety, ventilation and energy efficiency.
A property can therefore have planning permission but lack Building Regulations approval, or have Building Regulations documentation without the necessary planning consent. Evidence of one should not be reported as though it resolves the other.
The old four year assumption now needs particular care
It was once common to hear that operational development or a change of use to a single dwelling became immune from ordinary planning enforcement after four years. That is no longer a safe general statement for property in England.
From 25 April 2024, England moved to a ten year enforcement period for alleged operational development substantially completed on or after that date and an alleged change of use to a single dwellinghouse occurring on or after that date. Transitional rules mean that the date of the work or change of use must be established before reaching any conclusion. Wales retains a different statutory position.
The e-ROT paragraph dealing with unauthorised works where planning permission is absent and more than four years have passed provides wording for the circumstances described by that precedent. Its heading should not be treated as a substitute for checking the jurisdiction, dates, applicable legislation and facts of the particular transaction.
A local search can identify the question, but not always settle it
A local authority search may disclose planning applications, decisions, conditions and enforcement entries. It may not reveal every historic alteration, an inaccurate description or a development that was never brought to the authority’s attention.
The title, property information form, survey, valuation, physical description and replies to enquiries must be considered together. If they suggest that a conversion or alteration occurred, an absence of information in the search does not necessarily end the investigation.
There are also transactions in which no conventional planning search has been undertaken. Where that is the agreed approach, the client needs to understand what has not been checked and the limits of any alternative protection. The e-ROT precedent concerning a transaction where no planning search has been conducted is designed to help make that limitation explicit in the Report on Title.
A useful file review question
If the buyer later asks why the planning problem was not explained, does the file contain the answer, the follow up enquiry and clear advice on the consequences of proceeding?
Indemnity insurance does not grant planning permission
Lack of planning permission indemnity insurance may be an appropriate way to address a defined enforcement risk. It does not grant retrospective permission, confirm the authorised use of the property or guarantee that future development will be permitted.
The wording, exclusions, insured parties and limit of cover need to be checked. Contact with the planning authority can affect whether insurance remains available. The lawyer must also consider the current mortgage lender’s requirements. The LenderMonitor guide to lack of planning permission indemnity insurance highlights the need to examine the policy and applicable lender instructions rather than assuming that the existence of a policy resolves the issue.
Insurance may respond to specified financial consequences if enforcement occurs. It does not necessarily solve a buyer’s intended use, alteration plans, valuation concerns or future marketability. Those matters should be considered before exchange, not when the owner encounters a more cautious buyer or lender years later.
Current requirements cannot reconstruct a historic transaction
If a planning problem emerges on a later sale or remortgage, it can be tempting to look only at what the new lender requires. That may help solve the present transaction, but it does not establish what the original lender required when the property was bought.
The Lexsure Lender Archive topic page for missing planning permission provides historical context for lender requirements. A proper review of an earlier purchase should identify the lender, the relevant date, the instructions applying at that time and what the conveyancing file records.
A lender having previously accepted the property does not prove that the planning position was satisfactory or that the buyer received adequate advice. Equally, a new lender raising an objection does not by itself prove that the original conveyancer provided an unreasonable service. The historical evidence matters.
What the Report on Title should make clear
Where planning documentation is absent or incomplete, a useful report should explain:
- what works or change of use appear to have occurred;
- what planning consent or evidence of lawfulness has been requested;
- what has and has not been supplied;
- whether any planning conditions remain relevant;
- the applicable enforcement position, taking account of the location and date;
- whether the lender has accepted the proposed approach;
- what an indemnity policy would cover and what it would leave unresolved;
- how the issue could affect the buyer’s intended use, future alterations, sale or remortgage; and
- the options available before exchange.
The objective is not simply to place planning documents in the attachment bundle. It is to enable the client to decide whether to proceed, seek further evidence, renegotiate or withdraw while those options remain available.
When the problem only appears years after completion
The owner in PID 014 discovered the problem a decade after buying. That delay is typical of many property issues. A future buyer, conveyancer or mortgage lender asks a question that was never satisfactorily answered during the earlier purchase.
The original purchase file may show the search result, the enquiry raised, the seller’s response, the lender involved and the advice given. Those documents can help distinguish between a problem that was properly explained and accepted and one that was identified but allowed to disappear from view.
Did missing planning permission only come to light when you tried to sell or remortgage?
When I Bought explains which original purchase records may help establish what was investigated, what your lender required and what you were told before completion.
The real lesson is to follow the enquiry through
The Ombudsman’s finding did not turn on a failure to notice the conversion. It had been noticed. Nor did it turn solely on the absence of paperwork. The decisive service failure was that the response did not answer the enquiry and the client was not told about the unresolved risk.
Planning due diligence is not complete when the question is sent. It is complete when the evidence has been assessed, the outstanding issue has been explained and the buyer has made an informed decision. PID 014 shows how expensive the space between those stages can become.
This article provides general information about conveyancing and planning issues in England and Wales. It is not legal, planning, valuation or insurance advice for any particular property or transaction.