What should I do if I am selling a home without planning permission?

Alterations to residential property often don't need planning permission. But what should you do if you have made alterations to your home that should have had planning permission and you now want to sell you home?

Typical home alterations

If you have lived in your home for a number of years, you may have made improvements.

Perhaps you added a conservatory for extra living room or a porch for everyone to leave their wet coats and dirty boots. You may have added a bedroom, extended the property or converted the loft.

Many of these improvements could be classed as permitted development (PD) – a term given to works which may technically require planning permission but for which permission is deemed to be granted under a general permitted development order.

If the work falls under the category of permitted development, you do not need to obtain planning permission.

However, the rules surrounding permitted development are quite precise and you may find you have breached them if your home improvements have been extensive.

What are the rules for permitted development (PD)?

The legislation set out in the Town and Country Planning (General Permitted Development) Order 1995 as amended by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 details all the changes you can and can't make without planning permission.

With respect to extending your home, permitted development means you can add an extension to the side or rear of your house, providing its volume is less than 15% of the size of the original house. If your house is part of a terrace, the permitted size is less than 10% of the original volume.

However, if the extension takes up more than 50% of your garden, is higher than the original roof height or greater in volume than 115 cubic metres, planning permission must be obtained.

In addition, if your home had already been extended from its original size, say by 5%, you would need planning permission to add a further extension if the new extension was greater than 10% (or 5% if a terrace) of the property's original volume (i.e. a total of 15%/10% of the original house).

There are also rules about the permitted depth of extensions and their distance from the boundary of the property. Listed buildings or houses within conservation areas nearly always require planning permission to be granted before any alterations can be made. Some improvements, while classed as permitted development, still need to have building regulations approval.

In general, it is the responsibility of the person who carried out the work to make sure it complies with the regulations and issue a completion certificate.

Could missing planning permission affect the 'saleability' of my home?

Once you have accepted an offer on your home, your conveyancing solicitor will ask you to complete a Property Information Form (TA6). You can download a specimen of the TA6 form here:

Law Society TA6 Property Information Form

The TA6 form requires you to disclose any works carried out on the property and to provide evidence of the appropriate permissions or consents.

If you cannot provide the necessary planning documents, the buyer's solicitor will raise this with the buyer. As the new owner will inherit the liability and could face enforcement action from the local authority, their solicitor will raise the alarm.

There are solutions, all of which could protract the sale process to a greater or lesser extent. The most important point is not to be dishonest or withhold information on the form. If the new buyer subsequently discovers that you did not disclose an absence of planning, they could take legal action.

What you should do before putting your house on the market

Make a list of any alterations you have made, detailing their dimensions and cross-referencing against the property's original size. This will could help demonstrate to the buyer that the improvements are classed as permitted development.

• If you want to be certain that the existing use of a building is lawful for planning purposes or that your proposal does not require planning permission, you can apply for a 'Lawful Development Certificate' (LDC) from your local authority via the Planning Portal online application service. Although not compulsory an LDC may help you confirm that the use, operation or activity named in it is lawful for planning control purposes. There is a fee of around £75.
• Ensure that any completion certificates and building regulations approvals are available to show prospective buyers

I think my extension may be in breach of planning regulations

If your extension was completed more than 4 years ago and the local authority hasn't taken any enforcement action, it may have already lost its' right to do so. Although this does not technically make the extension lawful, it does mean that no action can be taken against the new owner.

Retrospective planning permission

Where the extension exceeds permitted development but has been completed within the last 4 years, it may be possible to make a retrospective application for planning permission. Depending on the work that has been done, the council should grant permission – provided it would have done so anyway before the work was carried out.

There will be a fee to pay and it may take a minimum of 8 weeks to process the application. However, there is a risk that permission may not be granted.

Indemnity insurance

A common way to address the absence of planning permission is to purchase an indemnity insurance policy. An indemnity policy will cover the new owner against any costs, or losses they incur as a result of enforcement action being taken against them.

An indemnity policy would be proposed by your solicitor as a tool to avoid more complex, costly and time-consuming alternatives from derailing the sale process. Indemnity is a widely used solution and your solicitor will arrange the cover on your behalf. The policy is then transferred to the new owner and can be transferred ad infinitum.

Depending on the level of risk, the premium would typically be between £100 and £500 and should last the life of the property.

You will need to confirm that the work was completed more than 12 months previously and that the house has been used as a residential dwelling for at least those 12 months.

Important

It is important that there has been no contact with the local authority with regard to the property for at least the preceding 3 months. As a seller would typically pay for the indemnity policy. The policy can be purchased online by your solicitor and cover will be effected immediately.

Once the policy is in place the policyholder must not contact the local authority about the property. To do so would invalidate the policy.

What will the mortgage lender's position on indemnity insurance be?

Legal indemnity insurance is accepted by most mortgage lenders as claims can be made for the costs of complying with or defending any enforcement action brought by a local authority. It will also cover any resulting loss of value to the property – if the extension is ordered to be removed for instance.