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Risk Update – Basement Developments and Planning – Do You Involve Other Professionals?

By Richard Gledhill
01.04.16
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MFL Professional’s monthly update for solicitors and Manchester Law Society member publication ‘The Messenger’, concerning the ever-changing landscape of solicitors Professional Indemnity.

Are you a Conveyancing Solicitor having undertaken instructions on a property involving this area at any point?

We have issued a number of technical bulletins going back to summer 2015 which have provided a focus primarily for Civil and Structural Engineers involved in basement conversions or builds, whether as a new build or in providing professional services for those seeking to increase their own business, letting or living space. However, as a Conveyancing Solicitor, a subsequent sale of such a property once completed might throw up potential liabilities either for those having advised on the original work or perhaps for those being instructed in the event of the sale.

Another well publicised building collapse following basement work (http://www.bbc. co.uk/news/uk-england-london-34935821) highlights a particular difficulty. In this case, it is understood the planning application was approved in October 2014 but under Richmond Council’s new basement rules, brought in in May 2015, the basement would not have been permitted at all because it is in a functional floodplain. In turn, this winter’s flooding in the north of England has also highlighted this very problem for many converted cellars.

This bulletin therefore takes a slightly different view from those we issued in 2015 and which had a primary focus upon the Construction Industry.. Here we take a brief look at some of the aspects which the Conveyancing Solicitor will have to address at the time of a sale in acting for a potential buyer which in turn might indirectly draw into the equation a number of other parties, whether a basement development has already been completed prior to the sale or where the buyer is wishing to undertake such work.

Is the buyer looking to convert an existing cellar into additional living space? If so, this may be a simple change of use not requiring planning permission. Do these plans involve exterior alterations, the creation of a new self- contained flat, any structural works or even a light well? If the answer is yes, then planning permission is likely necessary. Is the buyer wishing to create an entirely new underground space, perhaps as leisure facilities or living accommodation? This would deem planning permission absolutely necessary.

Buildings Regulation – approval will always be required where a property is extended whatever the position regarding planning permission. Has this been obtained? For projects such as these, this approval will have to be shown as having been granted on those key areas of structural integrity, fire safety and escape, electrical safety, tanking or other damp proof works.

Have Party Wall Act considerations been addressed, where of course the property concerned is connected to others, as defined under the Party Wall Act 1996?

Is the property in a Conservation Area ? If so, any impact upon the visual appearance of a property means additional controls. The same can of course apply to Listed Buildings or indeed even to the interiors on some cases – we have recently come across a case involving a property where even the inefficient toilet facilities could not be adapted as part of a wider extension because they were listed.

So, as a Conveyancing Solicitor, if a basement conversion has been undertaken on the property in question, enquiries will have to be made of the various parties involved prior to completion of the contract, necessitating sight of inter alia; appropriate planning permissions, evidence as to why planning permission may not have been required, listed building consents, requirement of Party Wall Act notices from the plans, any evidence of works having extended onto a neighbour’s property including underground etc.

As Conveyancing Solicitors, you may consider the availability of Indemnity or Title covers in addition to your advice as per the examples above.

For all parties involved, should things go wrong the costs incurred could be devastating, even where some or all of these may ultimately be recovered via the insurance programme but then lead to significant premium increases or even unavailability of cover, for example with the PII.

Reference to the Construction and Surveying professionals throughout the process will no doubt have been undertaken however and where so, we hope the above short note will highlight therefore how a careful approach by all parties involved can lead to a successful outcome with no impact on the respective PII policies and how a team of professionals might be involved in a project, however small, leading to a seamless and problem free outcome for all concerned including where these properties might ultimately end up on the market.

Should you require additional advice on the subject and the effect your involvement in this area might have upon your PII programme, then MFL Professional (as PII specialists acting on behalf of, Manchester Law Society), can help. Please feel free to contact us.

This article does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to MLS members and solicitors. Specialist advice should always be sought in any particular case.

Richard Gledhill, Executive Consultant – Financial Lines

E: richardg@m-f-l.co.uk

T: 0161 237 7725

M: 07984 879124

John Jones, Development Executive

E: johnj@m-f-l.co.uk

T: 0161 237 7739

M: 07872 501955

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