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Planning and environmental issues

Planning

Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?

The primary responsibility for granting planning permission and formulating planning policy lies with the local planning authority (LPA).

The parish council comments on applications relating to its area and has powers to prepare neighbourhood plans. The central government formulates planning policy which has nationwide effect.

The relevant secretary of state retains a power – through the call-in system – to determine certain planning applications; while in London, the mayor of London has planning powers in respect of applications of potential strategic importance. 

What are the eligibility, procedural and documentary requirements to obtain planning permission?

An application for planning permission can be made by any person. There are no requirements to have an interest in land or to have obtained the landowner’s consent. However, notification must be given to those with such an interest.

Various documents must be submitted, including:

  • a completed standard application form;
  • the correct fee;
  • a location plan;
  • a site plan; and
  • the correct ownership certificate.

For certain applications, additional documents may be required (eg, an environmental statement, a flood risk assessment or a design and access statement).

Once a valid application is received, the LPA must consider it within a prescribed timeframe; if it fails to do so, the applicant has a right to appeal. 

In certain cases, permitted development rights exist.

A separate regime exists for nationally significant infrastructure projects, as defined in the Planning Act 2008.

Can planning decisions be appealed? If so, what is the appeal procedure?

Appeals can be progressed in one of three ways:

  • written representations;
  • hearings; or
  • public inquiries.

These are normally dealt with by planning inspectors. In certain circumstances, the secretary of state may recover the appeal for determination.

The appeal process is commenced by the appellant submitting an appeal form and essential supporting documents to the Planning Inspectorate (PINS) and the LPA. For major development proposals, these documents must be received by PINS within six months of the date on the decision notice or six months from the date that the application should have been determined in the case of a deemed refusal.

The right to appeal is lost if PINS does not accept that a valid appeal has been made within the appeal period.

Following determination of an appeal, there is a limited right to challenge the decision in the High Court. The timeframe for such a challenge is six weeks.

Decisions to grant planning permission can be challenged by way of judicial review in limited circumstances.

What are the consequences of failure to comply with planning decisions or regulations?

LPAs have a number of powers to:

  • investigate alleged breaches of planning control – including rights of entry, service of planning contravention notices and service of temporary stop notices; and
  • deal with actual breaches – including issuing planning enforcement notices, stop notices and breach of condition notices.

Time limits apply.

Where a breach of planning control has been deliberately concealed and the statutory time limit for enforcement action has expired, the LPA can apply to the magistrates’ court for a planning enforcement order.

Injunctions can be used to prevent an anticipated breach of planning control and failure to comply can, in certain cases, be punishable by imprisonment.

What regime governs the protection and development of historic and cultural buildings?

Certain buildings and areas (ie, listed buildings and conservation areas) are protected because of their special architectural or historic interest under the Planning (Listed Buildings and Conservation Areas) Act 1990. 

Where a building is listed, the LPA must give listed building consent in order to demolish it or alter it in any way that would affect its character as a building of special architectural or historic interest, inside or out. This is in addition to any planning permission that may be required.

Carrying out unauthorised works to a listed building is a criminal offence, punishable by an unlimited fine or up to two years’ imprisonment, or both. A separate enforcement regime exists in respect of listed buildings.

Conservation areas are designated by the LPA where it is desirable to preserve or enhance an area’s special architectural or historic interest. In England, the primary effect of this is that permitted development rights will be restricted and the designation will form part of the considerations of applications for planning permission

Government expropriation

What regime applies to government expropriation of real estate?

Central and local government bodies have the power to acquire compulsorily interests in or rights over third-party land. Those bodies are known as ‘acquiring authorities’.

Where an acquiring authority wishes to exercise powers of compulsory acquisition it must have its decision confirmed by the appropriate central government department (ie, the ‘confirming authority’) before the power can be exercised. The decision to exercise powers of compulsory acquisition will be confirmed by the confirming authority only where the acquiring authority has demonstrated that there is a compelling case in the public interest for the use of compulsory purchase powers.

Landowners may object to the compulsory acquisition of their land interests. Those objections are considered by an independent examiner appointed on behalf of the confirming authority before determining whether to authorise the exercise of compulsory purchase powers

What is the required notice period for expropriation and how is compensation calculated?

Following a decision to confirm the exercise of compulsory purchase powers, notices must be published in a local newspaper, put up on site and served on all affected land owners. The acquiring authority then has three years from publication of the notices to exercise its powers, after which time they will expire.

Alternatively, the acquiring authority can exercise its powers by:

  • the more commonly used procedure of making a general vesting declaration; or
  • the service of a notice to treat and notice of entry. A three-month notice period applies.

A party which has had land (or rights over land) acquired through the use of compulsory purchase powers is entitled to compensation. The right to compensation and methods and procedures for assessing the correct amount are derived from the Compensation Code. This comprises primary legislation, case law and established practice. The principal statutes are the Land Compensation Acts of 1961 and 1973 and the Compulsory Purchase Act 1965.

The Compensation Code is based on the principle of equivalence, meaning that the affected party should be compensated on the basis that it is no worse off (but no better off) than if its land had been unaffected by the compulsory purchase. Affected parties are normally entitled to:

  • the value of the land taken;
  • the depreciation in the value of any retained land where only part of an affected party’s land holding is acquired; and
  • where the affected party also occupied the land, its costs and losses incurred as a result of being disturbed from occupation.

The value of the land acquired is normally based on market value, assuming a willing buyer and a willing seller. A dispute as to the correct calculation of compensation can be referred by either party to the Upper Tribunal (Lands Chamber) for determination.

Environmental issues

What environmental certifications are required for the development of real estate and how are they obtained?

This depends on the nature and location of the development. For example, certain types of development are subject to environmental impact assessment, which requires the submission of an environmental statement to the planning authority. Where protected species or habitats could be affected by the development, licences and conservation measures may be required. Where the development end use involves the storage of large quantities of specified hazardous substances, consent may be required from the relevant regulatory authority. 

Pre-development works and the construction process also usually require a suite of environmental permits, consents and registered exemptions. These are obtained by application to the relevant regulator or statutory undertaker.

What environmental disclosure obligations apply to real estate sales?

Generally, the onus is on the buyer to satisfy itself as to the state and condition of the property.

What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?

This depends on the trigger for clean-up. As well as regulatory regimes (outlined briefly below), clean-up can be triggered by other events, including:

  • the surrender of an environmental permit (liability usually falls to the operator under the permit) or lease (liability is determined under the lease); or
  • third-party claims in common law against the owner or occupier (eg, trespass, nuisance or negligence).

The contaminated land regime is a retrospective statutory regime which apportions liability for remediating contaminated land. It focuses on ‘appropriate persons’ who are causers or knowing permitters of contamination, and owners or occupiers where causers or knowing permitters of contamination “cannot be found”. Liability under the contaminated land regime can be apportioned or excluded. The clean-up of historic contamination is commonly undertaken on a voluntary basis as part of a development process. Remediation of contamination is usually governed by permission conditions which, in practice, require preparation of a remediation strategy and implementation plan, and regulators’ satisfaction with a validation report and – if necessary – a monitoring programme.

Regulatory clean-up liabilities may also arise under:

  • the Water Resources Act (anti-pollution works);
  • the Environmental Protection Act (waste removal or statutory nuisance abatement); and
  • the environmental damage regime (proactive duties to notify regulators and remediate environmental damage).

Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?

Measures to promote energy efficiency and emissions reductions in buildings include the following:

  • Energy performance certificates (EPC) – documents that provide information about the energy efficiency of a building and must be disclosed when a building is sold or leased. From April 1 2018 the Minimum Energy Efficiency Standards will make it unlawful for landlords to grant a new lease where the property has an EPC below an E rating. 
  • The Energy Savings Opportunity Scheme – a scheme that requires larger companies and non-public sector organisations to carry out mandatory energy-efficiency audits and identify opportunities for energy savings.
  • Feed-in tariffs – a UK scheme that incentivises small-scale generation of electricity using renewable technologies through cash payments.
  • The Renewable Heat Incentive – an incentive under which the government makes regular payments to individuals or organisations which install eligible renewable heating systems or inject biomethane into the gas grid.
  • The Carbon Reduction Commitment Energy Efficiency Scheme – a mandatory emissions trading scheme for large users of energy in the United Kingdom which need not otherwise reduce these emissions. The scheme will cease to apply after October 2019. 

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