Chartered Surveyors are full members or Fellows of the Royal Institution of Chartered Surveyors (RICS).  The RICS says that Chartered Surveyors shape the way we live. From our towns and cities to our streets and homes, they help create safer, better, happier communities.

There are more than 100 different types of Chartered Surveyor in property, land construction and infrastructure. Between us we keep traffic flowing, water running and people moving. They shape our roads, bridges and tunnels, our skyscrapers, stations and stadiums.

Chartered Surveyors shape our futures too, regenerating deprived areas and planning smart cities, while pioneering safer, more sustainable and more environmentally friendly building methods.

The role of a surveyor is to guide construction and development projects, and to provide professional advice on matters such as the structural integrity of a property or its value.

Rural surveyors value and manage the use of land and buildings in the countryside and market towns.

The development of all land in England and Wales is controlled by planning legislation, policy and case law.  Throughout history governments and rulers have sort to control what can be built and what can be done.  The Norman kings restricted the construction of castles by licence to their loyal landowners.  However, it wasn’t until the Victorian era that concerns over health and the source of Cholera outbreaks created the desire to formally control development in our towns and cities.

Most societies now control development for the greater public good.  Following on from the early health legislation, acts of parliament were passed in the early part of the 20th century.  This piecemeal approach to legislation was consolidated after World War 2 and has been enhanced ever since.

Planning is undertaken by several bodies.

  • Central government sets over-arching policies and legislation. So the Department for Communities and Local Government produces the National Planning Policy Framework, Specific planning acts, statutory instruments, guidance and statements.
  • County Councils are responsible for minerals & waste planning and create a county minerals & waste plan. They are also responsible for Highways planning and have control over their own developments.
  • District, Borough, City or Unitary authorities are responsible for creating a Local Development Framework, which is a suite of documents that decide what type of development should occur where.

Where an area is designated as National Park then the National Park Authority will usually take on the planning function.

Yes – all development is subject to planning rules unless exempted.  Development is defined as the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.  The planning legislation goes on to exclude, amongst other activities;

  • maintenance, improvement or other alterations which only affect the interior of the building or do not affect the external appearance,
  • the use of any buildings or land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the house,
  • any land used for agriculture or forestry .

There is an extensive list of permitted activities listed in the General Permitted Development Orders.

The list of permitted development changes periodically.  This list was updated in 2020 & now allows many conversions of agricultural buildings to residential use with only a notification, provided a number of criteria are fulfilled.  Other activities that do not require a full application include the installation of a recharging point for electric cars, change of use of restaurants, pubs & takeaways into shops, change from shops to professional offices and possibly more relevant following the tightening of rules on betting machines, change of use from betting shop to financial and professional services.

Anything which is not listed in the GDPO will probably require either an outline or a full planning application.  It is not illegal to undertake an activity without planning permission, but it is illegal to ignore an enforcement notice.  If you have undertaken an activity without planning you can either apply for retrospective planning permission or a Certificate of Lawful Existing Use or Development.  These are all topics for another day.

The concept of Green Belt in England was introduced around London in 1938 and extended to other cities from 1955.  15 towns and cities now have a green belt policy to prevent urban sprawl.  They are: Newcastle Upon Tyne, York, Leeds, Manchester, Sheffield, Liverpool, Nottingham, Stoke on Trent, Birmingham & Coventry, Cambridge, London, Oxford, Bristol & Bath and Bournemouth.  They cover about 13% of the area of England totalling.  You can check the actual area on the Green Belt map.

The Green Belts have five purposes:

  • to check the unrestricted sprawl of large built-up areas
  • to prevent neighbouring towns merging into one another
  • to assist in safeguarding the countryside from encroachment
  • to preserve the setting and special character of historic towns
  • to assist in urban regeneration, by encouraging the recycling of derelict and other urban land

Unlike National Parks or Areas of Outstanding Natural Beauty, the landscape quality of the Green Belt is not a factor in its designation. Local authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access, outdoor sports & recreation; to retain and enhance landscapes and biodiversity; or to improve damaged and derelict land.

Generally new buildings are deemed to be inappropriate in the Green Belt.  However, there are exceptions.  These are:

  • Buildings for agriculture & forestry.
  • Facilities for outdoor sport, recreation and for cemeteries.
  • Extension or alterations to existing buildings.
  • Replacement of existing buildings.
  • Limited infilling in villages and limited affordable housing.
  • Limited infilling or redevelopment of previously developed sites (brownfield land), whether redundant or still used.

Other development may also be appropriate in the Green Belt, such as mineral extraction, engineering operations, transport infrastructure, the re-use of buildings of substantial and permanent construction and development under a Community Right to Build Order.

Certificate of Lawful Existing Use or Development (CLEUD) and Certificate of Lawfulness of Proposed Use or Development (CLPUD) are both useful when you have developed or changed the use of land or breached planning conditions when you wish to regularise the position either for peace of mind, to resist planning enforcement or because you wish to sell, mortgage or let the property.

A Certificate of Lawful Existing Use or Development (CLEUD) is a legal document (not planning permission) issued by the Local Planning Authority.  It is usually used to regularise unauthorised development and prevent enforcement action being taken.  The certificate establishes that an existing use, operation or activity named in it is lawful and as such cannot be enforced upon.

Unlike normal planning applications, CLEUDs are decided on the facts of the case (not planning policy).  Evidence must be provided to prove to the council, on the balance of probability, that the development/breach of condition has been ongoing continuously for the required minimum time period and that it was not deliberately hidden.  Evidence is anything that substantiates the application.  It will vary in every case, but could include: statutory declarations, photographs, business accounts, utility bills, pay slips, leases …the list goes on.  It is important that this documentation is carefully collated and presented to support the case.

The grant of a certificate applies only to the lawfulness of development in accordance with planning legislation. It does not remove the need to comply with other legal requirements such as The Building Regulations, the Wildlife and Countryside Act 1981, the Planning (Listed Buildings and Conservation Areas) Act 1990 or other licensing and permitting schemes.

An appeal can be made to the Secretary of State against the refusal of a Lawful Development Certificate in certain circumstances.  The Secretary of State’s decision can be challenged in the High Court by the appellant or the local planning authority.

As part of the process of applying for a grant of representation you, or your advisor, will need to provide an estimate of the estates’ value to Her Majesty’s Revenue & Customs. The estimate provides a ball- park figure so that HMRC know how the application should be treated. Once you have this, if the estate has a value of more than £250,000, you will need to get accurate valuations of any assets worth over £500 (unless the estate is passing to the person’s spouse).

Assets that may require professional valuations include cars, jewellery, stocks and shares, businesses and real estate. You should liaise closely with your valuer and accountant, so they are aware of exactly how each asset is likely to be treated under the prevailing tax regime, ensuring each asset is correctly allocated into the relevant reliefs before the Inheritance Tax owed is calculated.

If an estate includes land and buildings then the Government expects the personal representatives to obtain a professional opinion of value. The Government guidance does state that when valuations are undertaken by Chartered Surveyors then they must be undertaken in accordance with The Royal Institution of Chartered Surveyor’s Practice Note.

Valuations of Land and buildings on purchase or sale
In addition to the usual issues relating to land sales, charities are subject to certain rules and procedures over and above those that apply to other corporate bodies.  A charity is not free to sell or buy land in any way the trustees choose, even if the charity trustees consider that the sale is in the charity’s best interests.  The starting point is that no land can be sold or transferred without an order of court or from the Charity Commission. To be compliant with the Charities (Qualified Surveyor’s report) Regulations 1992 the report must include a valuation and advice as to how the best terms can be reasonably obtained.  Regular valuations will also be required for audited accounts and good estate planning.

General Estate Management issues.
Holding an estate either for a charity’s core aims and objectives, or for investment, does require professional management.  Lease terms need to be agreed and monitored, rent reviews dealt with, properties maintained and ensure that they comply with prevailing legislation.  Boundary and ownership issues often arise, as do environmental compliance with planning law issues.  It is important that professional advice is sought.

Review the Estate to identify Value opportunities
Many charities have held their estate for many years with a focus on delivering their charitable aims.  However, with a squeeze on incomes and/or an aspiration to provide more services, Skinner Holden have helped many charities to review both their core holdings and legacies, to identify and enable projects such as cafes, lodges, rural industrial and craft uses to move forward.  We have also identified where properties have been under rented or better used in a different way.  Reputational risk is a key issue for many charities who rely on their membership and legacies for a significant element of their income stream.  So, the communications around any project must be managed well and a robust risk register collated and maintained at the start of each project.  A full initial appraisal will identify these opportunities and how they can be taken forward to create sustainable incomes.

Trees are usually owned by the person on whose land they grow.  Roots, bough, branches, leaves and fruit all belong to the owner of the tree.  When the roots and branches grow over the boundary, they do not become the property of the neighbour and neither do they acquire an easement.  Therefore, they are not there by trespass or occupation, which can gain a right, but by legal nuisance.

Extensive case law has considered nuisance, many cases involving issues caused by trees. From case law there are three kinds of Private Nuisance:

  1. nuisance by encroachment on a neighbour’s land;
  2. nuisance by direct physical injury to a neighbour’s land or
  3. nuisance by interference with a neighbour’s quiet enjoyment of his land.

From the case law and standard texts on boundary trees there are four tests to assess whether a claim is likely to stand.

  1. Have the roots, boughs or foliage of the neighbour’s tree caused harm to a neighbour’s structures?
  2. Was that harm reasonably foreseeable?
  3. Were there any practical measures that could have been taken to avoid or minimise the harm and its consequences?
  4. Was it reasonable to take the steps that were actually taken?

Proximity, soil type, tree species, method of construction and use of the area affected; must all be considered when trees are encroaching across boundaries, to assess the liabilities of the parties.

Following a successful trial period, in 2015 the government introduced a number of classes of permitted development in order to help ease the housing shortage in England.  One of these classes was Class Q, the conversion of agricultural buildings to dwellinghouses, or in plain English barns to homes.

If a building is eligible for Class Q then all that was needed was a notification to the Local Planning Authority.  However, there were a number of conditions that the building and design had to fulfil before it was eligible for conversion under Class Q.  Many local planning authorities viewed this as a back-door route to unnecessary rural development, rather than an opportunity to create new and urgently required rural housing.  This defensive stance culminated in a legal case which clarified the position, to some degree, although tightened the criteria.

Get in touch with Skinner Holden if you’d like more advice on whether your barn might be eligible for conversion.

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