Building works - developing relationships with the neighbours

Written by Roland Finch | 1 May 2012, 12:00:00

"Neighbours, everybody needs good neighbours..." ...according to the theme tune of a popular TV programme. Never is this maxim more relevant than when construction work is proposed. The UK development control system is designed to involve adjacent owners and occupiers at every stage of the process, and big problems will ensue for the developer who ignores it. NBS Technical Author Roland Finch explores the implications.

Development control

A developer and his representatives are going to have to deal with both Planning and Building Control processes. While the latter is unlikely to involve detailed consultation, the former most certainly will.

The Planning system for England and Wales is set out in the Town and Country Planning Act (TCPA) 1990. (In Scotland, The Town and Country Planning Act (Scotland) 1997 Chapter 8 as amended by The Planning etc. (Scotland) Act 2006).

The principal responsibility for Planning has generally been devolved to local planning authorities, (LPAs) typically in the form of the local council. They are responsible for drawing up a Core Strategy, and a Local Development Framework (LDF). In London, there is also a strategic London Plan, produced by the Mayor of London.

Local planning authorities must consider National Planning Policy (NPP) in drawing up their core strategies and other plans. This policy deals with things such as economic growth, housing, shopping and green belts.

N.B. There have been two significant recent changes to legislation. The Planning Act 2008 introduced a new system for "nationally significant infrastructure projects", and the Localism Act 2011 contains a number of proposed changes. The Government has announced that planning and regeneration provisions of this Act will:

Abolish Regional Spatial Strategies
Abolish the Infrastructure Planning Commission and return to a position where the Secretary of State takes the final decision on major infrastructure proposals of national importance
Amend the Community Infrastructure Levy, which allows councils to charge developers to pay for infrastructure. Some of the revenue will be available for the local community
Provide for neighbourhood plans, which would be approved if they received 50% of the votes cast in a referendum
Provide for neighbourhood development orders to allow communities to approve development without requiring normal planning consent
Give new housing and regeneration powers to the Greater London Authority, while abolishing the London Development Agency.

Permission

It is the developer's responsibility for seeking planning permission. Where permission is required, a statutory consultation will take place with a number of stakeholders, depending on the nature of the application being considered – including heritage and conservation bodies, industry representatives, government departments, police authorities and other statutory representatives (see later).

Permission will either be granted (possibly subject to certain conditions) or refused. Some minor changes do not need planning permission. These are covered by the Town and Country Planning (General Permitted Development) Order 1995. There are also different requirements if, for example, the property is a listed building, or in a national park or a conservation area.

One other significant change to legislation is the Community Infrastructure Levy (CIL). This was introduced by the Planning Act 2008, and came into force on 6 April 2010 through the Community Infrastructure Levy Regulations 2010. It partially replaces agreements reached under "Section 106"of the TCPA. The CIL provides for a fixed charge to be made on a project based on floor area, rather than negotiations to get the developer to pay for one-off improvement works associated with the development, as previously was the case.

Development may be liable for a charge under the Community Infrastructure Levy (CIL), and this would be collected by the LPA.

Other consultees

"With a little understanding, you can find the perfect blend..."

The neighbours don't have to be adjacent owners or occupiers. They include a variety of people and organizations that may be affected by the development. These might include:

Parish, town or community councils, who may have a view on appearance or amenity
Environment Agency or the local water and sewage company - to discuss any potential sewerage, water or flooding problems
Other statutory undertakers – electric, gas, communications and suchlike
Ministry of Defence
Highway Authority (usually the county council in non-metropolitan areas or the local council in metropolitan areas) - to discuss road safety and traffic issues (N.B. The highway authority will also issue licences to allow work to be carried out in the highway, as well as those for the positioning of scaffolding and skips)
Health and Safety Executive - to discuss the use of any dangerous materials
Police Authorities – where crime or security may be an issue
Special interest, heritage or conservation groups such as the Forestry Commission, National Parks Authority, Sport England, Waterways or Rail Network Operator where relevant
Waste regulators.

As well as statutory consultations, there are a number of other considerations to be taken into account before development commences. The government's planning portal website lists the following:

Covenants and Private rights
Listed buildings
Conservation areas
Rights of way
Ancient monuments
Licensed sites
Protected species.

Finally, where the development is relevant, discretionary consultation may take place with other special interest bodies, notable examples being the Auto Cycling Union, Ramblers Association or the British Horse Society.

"Neighbours...should be there for one another..."

The "physical" neighbours will indeed be there, as owners or occupiers of adjacent land. They will become involved in the process in a number of ways.

If a developer makes a planning application, the LPA will consult with adjacent owners and occupiers. It makes sense, therefore, to discuss the development with them beforehand, particularly if they are likely to be affected by it by any of the following:

The Party Wall etc. Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. Anyone intending to carry out work (anywhere in England and Wales – Scotland deals with this under the common law doctrine of common interest) of the kinds described in the Act must give Adjoining Owners notice of their intentions and reach agreement before commencement of the work. Further details are available from Department for Communities and Local Government.
Part 3 of the Environmental Protection Act 1990 places a duty on a local authority to investigate complaints of statutory nuisance from people living within its area. This may involve noise, light, smells, fumes and gases, smoke, dust, where it unreasonably interferes with the use or enjoyment of someone's premises or is prejudicial to health. Contravention may lead to prosecution under the relevant legislation.

Of course, it is always possible that nuisance may be caused without representing statutory breaches. It may be sufficient that some activities could be rescheduled so as not to affect the neighbours – timing of deliveries could be restricted, or noisy works carried out at times when the adjacent premises are not in use.
Rights to light. In England and Wales a right to light is usually acquired under the Prescription Act 1832. These are civil matters, and as such independent of planning laws. Following recent case law, some developers are now looking to try and use Section 237 of The Town and County Planning Act, which gives the LPA powers to allow a scheme with over-riding social and/or economic advantages to an area, to proceed.
Access to Neighbouring Land Act 1992. As noted earlier, it is always preferable to reach an amicable solution with adjacent landowners. However, under certain circumstances it may be necessary to obtain an access order under this legislation to carry out certain work (as defined in the legislation).

Summary

As the song concludes:

"Neighbours need to get to know each other; that's when good neighbours become good friends..."

It probably comes as no surprise that it pays to have early involvement with adjacent owners and occupiers, and those responsible for discharging legislative duties.

In truth, they don't need to become good friends; nevertheless, while a good relationship may not initially save money, it will certainly save time and effort – which may well lead to the same thing in the longer term. A common understanding of each other's goals and a collaborative approach will result in more efficient processes, and improved results.