Times have changed, and when handling the sale and purchase of real estate, solicitors now appear to spend a significant amount of time attempting to locate documentation for property improvements or modifications.

Organise documents in a secure location.

It is crucial that these documents are filed with the title deeds to your property, or at the very least stored together in a safe place if you make changes to your property and acquire planning permission, a building warrant and/or a completion certificate.

It would be helpful if you contacted the Council via letter or email and maintained a note of the response if you had any questions about a potential change.

We wish we had a pound for each time a client confided in us that they had called the council beforehand and “been told that no Permissions were necessary” before making a change. Typically, there is no documentation of this interaction. An e-mail exchange in this case can prove helpful.

The two functions of the Local Authority

The notion that the Local Authority only has one responsibility when it comes to changes is a frequent issue. In actuality, the Council serves two purposes. The Council has the option to either accept or deny a request for planning permission, with or without the terms and conditions they see appropriate. That merely authorises you to make that modification.

The Council also performs a second task, known as building control, in which they determine if the work you want to complete conforms with building regulations. The Council does not have jurisdiction over that matter, with certain exceptions, and they are working to check the plans that can ensure that one complies with the building regulations.

We frequently discover that clients call one or the other of the Council’s two departments and presume that the response from one covers both. This is not true. Even while it is more common for something that needs planning permission to also need a building warrant, not everything that needs planning permission will necessarily need a building warrant.

When insurance indemnity can come to the rescue

Another minor nuance of the matter is that you should not contact the Council directly if you are asked whether or not a Building Warrant or Planning Permission exists for changes.

When changes have been made in the past, it may be possible to obtain an insurance indemnity policy that would cover you in the event that the council ever demanded that you submit retroactive applications for planning permission or a building warrant and that you carry out the necessary work to bring the changes up to the required standard.

An indemnity will not be available if you contact the Council since, in essence, you have informed the Council that there might be a problem and increased the likelihood that they will look into it.

Historic Time Limits are different for Planning Permission and Building Control

Changes made more than 20 years ago are typically ignored and treated as historic after that point. Anything less, however, might need authorisation. There is really no system for seeking permission based on the Building Regulations if you made an alteration 18 years ago that should have required a Building Warrant, as far as the Scottish Borders Council is concerned.

In particular, Scottish Borders Council requires you to apply for a Completion Certificate where no Building Warrant was obtained and the alteration has to comply with the current version of the Building Regulations otherwise a Completion Certificate will not be granted. This might involve several hundred pounds worth of work and considerable disruption to the property to bring the alterations up to current standards.

How to avoid setbacks to your transaction

It can take quite a few weeks to get retrospective permissions and this can have a knock-on effect on your transaction. It could delay completion by quite some time.

In a sale, it might mean some money is retained by the purchaser until the permission comes through which might scupper some of your plans.

In a purchase, lenders won’t permit us to handle your mortgage in a transaction unless the necessary authorizations are in place.