The latest edition of Planning Magazine reports a 50% increase in complaints against members, which represents the largest number of complaints in any year to date. A number of these concerned land ownership issues and certification.
Submitting a planning application triggers a number of legal requirements, including certification of land ownership. Errors in certification can have serious consequences.
What's the issue?
It's well known that an applicant for planning permission doesn't need to own the land, (or even obtain the owner's consent). However, applicants do need to notify the land owner of the proposal. Principally, this is to prevent an owner selling land without knowledge of its true value with the benefit of permission.
A planning application form requires certification of ownership and agricultural tenancies. In Scotland, an 'owner' is any person who owned the land 21 days before the date of the application, and includes a tenant with a lease which has more than seven years to run. Reasonable steps must be taken to identify such people. Generally this should involve checking the Land/Sasines Register (not straightforward) or the Valuation Roll.
What's the risk?
(1) Failure to comply may mean that the application cannot be validated or the application determined (at least until a solution is agreed with the planning authority);
(2) If a planning obligation is required, any defect may be picked up during title examination;
(3) If the error is not noted prior to determination, the consent may be liable to judicial review, and
(4) It is an offence to complete a false or misleading certificate either knowingly or recklessly, with a maximum fine of up to £5,000.
What does it mean?
As usual, the approach of individual planning authorities may differ.
Defects may result in the 21 day period being re-run, leading to costly delay, additional consent risk and wider contractual implications.
Case law suggests that a defect in certification doesn't automatically result in the permission being set aside. Where there has been no prejudice, the planning permission will remain intact.
The 'knowingly' or 'recklessly' test for committing an offence also involves a high threshold which is not easily established.
That said, as illustrated in the Planning Magazine article, getting ownership certification wrong can damage professional reputation. Consultants and agents should be mindful of the consequences of getting it wrong.