Acceptable evidence of Compliance

The Conveyancing Committee has recently been asked to provide guidance to a solicitor on the best practice for a purchaser’s solicitor seeking evidence that an occupancy condition contained in a Grant of Planning Permission for a house being sold had been complied with.

Occupancy conditions or indigenous population conditions in planning permissions are common in rural areas being deemed necessary to implement rural settlement strategies in County Development Plans.

In recent years a number of Planning Authorities have been inserting somewhat similar provisions to enforce such occupancy conditions. Typical clauses in planning permissions provide that:

1. the proposed dwelling when completed shall be first occupied as a place of permanent residence by the applicant, members of the applicant’s immediate family or their heirs and shall remain so occupied for a period of seven years thereafter;
2. within two months of the occupation of the proposed dwelling a written statement of confirmation of the first occupation of the dwelling shall be submitted to the Planning Authority in accordance with (i) above and the date of such first occupation; and
3. this condition shall not affect the sale of the dwelling by a mortgagee in possession or by any person deriving title from such a sale.

Some Planning Authorities require in addition that the applicant enters into a legal agreement such as a Section 47 Agreement in regard to the occupancy which can be registered on the title to the property in the appropriate registry.

What should a purchaser’s solicitor require when buying such a property?  

It is a given that the applicant for the permission was the owner for the relevant period but a purchaser’s solicitor should check this.

If a Section 47 Agreement is registered on the folio the matter is straightforward.  If the sale is within the seven years period required by the Planning Permission, the vendor must obtain a release of this commitment from the Local Authority such that the burden can be removed from the title to the property.  If the Section 47 Agreement only deals with the matter of the occupation by the applicant for seven years or some other period, and that period has expired the best and tidiest practice would be to have it released before completion but if for some reason that is not practicable it is clearly not essential.

When selling a dwelling which was erected on foot of a planning permission which included clauses (i) and (ii) above a purchaser’s solicitor should seek the best evidence of compliance which is a letter from the Local Authority confirming compliance.  Procuring such a letter may present difficulties for a person who did not give the Planning Authority notice of the first occupation in accordance with the condition. People may generally be aware of the seven year commitment, but the two months limit to furnish confirmation of the first occupation is a trap for the unwary. At the stage of taking up occupation there is usually no solicitor or architect involved who might remind the applicant of the requirement to give notice to the Planning Authority of the date of first occupation and the time limit for doing so. Local Authorities will expect people to comply with the two months’ notice period and are likely to be sceptical about requests for confirmation of compliance if the notice of occupation is given some years later.

The Committee believes that it may be reasonable for a purchaser’s solicitor to accept alternative evidence of compliance with such a condition if for some reason the best evidence is not available. A vendor may be able to produce compelling evidence of compliance with the actual occupation requirement despite not having given notice within the two months’ time limit. 

Failure to give notice within the two months’ time limit

The Committee is of the opinion that if a house has been erected more than seven years previously and there is compelling evidence of compliance with  the condition which requires the occupation of the Applicant, and the only breach is a technical breach due to the failure of the Applicant to give notice of the first occupation, it would be reasonable for a purchaser to accept the situation on the basis that it is not a breach of condition which goes to the root of the planning permission or is contrary to public policy.

The Committee was asked if the usual architect’s certificate of compliance for the house could be accepted as sufficient evidence of compliance with such an occupation condition. The Committee does not accept that the usual architect or engineer’s certificate of compliance with planning permission is sufficient verification in respect of such a condition. 

The Conveyancing Committee will keep the matter under review and will issue further guidance if necessary.