Legislation

This page is intended to give a brief introduction to some of the legislation affecting construction projects in England and Wales. Also Scotland and Northern Ireland have similar pieces of legislation.

Please note that the content of this page should not be treated as legal advice.

THE TOWN & COUNTRY PLANNING ACTS.

Almost all developments require an application to be made to the Local Planning Authority, usually the local Council. The LPA has the authority to grant consent either by Committee Approval or Delegated Powers. It also has the authority to issue a Planning Refusal Certificate, a Planning Contravention Notice, or a Planning Enforcement Notice. In the event that the LPA issues a Planning Refusal or Enforcement Notice then this may be appealed against by making an application to the Welsh Assembly Government (in Wales) or the Secretary of State (in England).

The LPA uses instruments such as the Local Development Plan, Planning Policy Guidance & Technical Advice Notes to determine how the built environment shall be developed. It derives part of its running costs from the Application fees and has the authority to levy additional charges on developers through the use of an Agreement under Section 106 of the Town & Country Planning Act or Community Infrastructure Levy Charges. These additional charges are typically levied in respect to Highway Improvements, Schools, Public Open Space, Town Centre Improvements, & Public Art.

The Planning Policy Guidance & Technical Advice Notes now require certain additional supporting documents are submitted as part of the Planning Application including: A Design & Access Statement, An Ecological Survey of fauna and flora, An Arboriculture Survey, A Structural Survey of an Existing Structure, An Environmental Impact Assessment, A Contamination Report, A Noise Impact Assessment, or a Flood Consequences Assessment.

Failure to have a valid Planning Consent will result in enforcement order being severed which in turn if actioned can result in heavy fines at the Magistrates Court or a Magistrates order to cease use of the building or even its demolition.

There are eleven basic types of Planning Application:

• A pre-application to obtain Planning Advice prior to making a full application or to confirm that the proposed development is for a Permitted use.
• An Outline Application: This is used where there is little detail of the proposed development available and is usually used to establish the principle for development prior to selling an un-developed parcel of land. However with the introduction of the requirement to submit, as part of the Planning Application, a Supplemental Design & Access Statement, more and more detail is now required for an outline application. This coupled with the fact that “minor amendments” no longer permitted mean that an outline Planning Application is less effective.
• A Reserved Matters Application: This is an application to submit additional details to those already approved in an Outline Planning Consent which in doing so will eventually convert the consent into a Full Planning Consent.
• A Full Application: This is where sufficient detail is available to determine the Application subject to such conditions as the LPA may wish to impose.
• A Retrospective Application: This has the same detail as a Full Application but is used to regularise a development or use. This application is usually made in response to a Planning Contravention Notice, or a Planning Enforcement Notice.
• A Lawful Development Certificate for an Existing Use: This is an application to continue to use a development which does not have the benefit of a Planning Consent for which there is a long established use.
• A Lawful Development Certificate for a Proposed Use: This is an application to commence a development which does not require the benefit of a Planning Consent such as a Permitted Development.
• An Application for a Prior Approval: This relates to specific types of development and has strict criteria.
• An Application under Permitted Rights: This is usually reserved for developments relating to Agriculture or Forestry.
• An Application for Change of Use: all developments are categorised into use classes and an application is required to use the premises for a different use class.
• An application to satisfy a Planning Condition: This is usually done by letter and may be require to be done prior to commencement of the development or before the development is put into use.

All Planning Applications Comprise of the following mandatory elements:

• The Application Form.
• The Agricultural Certificate.
• Land Ownership Certificate.
• Location Plan.
• Block Plan or Site Layout Plan.
• Proposed Plans and Elevations.
• Design and Access Statement.

Together with any of these drawings as appropriate to the type of development:

• Existing Plans and Elevations (if appropriate).
• Existing Site Layout (if appropriate).
• Typical Site Sections (if appropriate).
• Landscaping Layout (if appropriate).
• External Finishes (if appropriate).
• Computer Generated Images of the proposed development (if appropriate).

And also any of these reports as appropriate to the type of development:

• Construction Method Statement (if appropriate).
• Ecology Report (if appropriate).
• Arboricultural Report (if appropriate).
• Ecological Impact Assessment (if appropriate).
• Environmental Impact Assessment (if appropriate).
• Flood Consequences Assessment (if appropriate).
• Structural Engineer's Report (if appropriate).
• Noise Impact Assessment (if appropriate).
• Highways Impact Study (if appropriate).
• Retail Impact Study (if appropriate).

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LISTED BUILDING CONSENT UNDER THE CONSERVATION ACTS.

An application may be required if the existing building has been designated as a Listed Building. The application is made to the LPA at the same time at the Planning application, for their vetting before it is passed to Cadw (in Wales) or English Heritage (in England) for their approval.

THE PARTY WALL ACT 1996

This Act was brought into Law in order to reduce neighbour disputes. It sets out a series of notices which one neighbour must serve on the other prior to starting work and also sets out a framework for arbitration. The Government has produced a booklet on the Act which includes standard notice letters. It is available to download in English or Welsh at:

If you are carrying out works governed by the Party Wall Act, you need to serve a party wall notice on your neighbours. This must be done at least two months before the notifiable works begin, and at least one month before the notifiable excavation works begin. Notifiable work is either building work which affects a party wall or boundary line, or excavations within three or six metres of a neighbouring property (depending on the depth of the foundations you are making). This will include most extensions and basement and loft conversions. For more information on the Party Wall Act click on the link.

BUILDING REGULATIONS UNDER THE BUILDING ACT 2010.

Almost all developments involving building works will require building Regulations Approval. This may be dealt with by making an application to the Local Authority Building Control, the NHBC, or a Private Building Control Company. The fees vary between Authority to Authority.

There are three basic types of application:

A Full Plans Applications: This is the principle application used and comprises of two elements. Firstly plans, calculations, and other supporting documents are submitted for approval prior to commencement of the works; secondly site inspections during the construction phase. This process takes at least 2 weeks to complete the vetting of the plans.

A Building Notice: This is used for some small domestic works involving conversion or extension of an existing building. This requires only 48 hours notice and plans though submitted are not vetted prior to commencement of the works and there is a greater freedom to vary construction methods should circumstances dictate.

An Application for Regularisation: Like a full plans submission but is used in the event that an application has not been made prior to the works being undertaken.

FLOOD DEFENCES REGULATIONS UNDER THE LAND DRAINAGE ACT 1991 AND THE WATER RESOURCES ACT 1991

The Land Drainage Act identifies three classes of watercourse:

• Navigable Water Courses: under the jurisdiction of the British Waterways Authority.
• Minor Water Courses: under the jurisdiction of the Local Authority.
• Main Rivers: under the jurisdiction of the Environment Agency.

Should the development result in a discharge of water to any of these then an application for consent for such will be required.

If the watercourse is culverted which requires to be built over or diverted or a bridge is required to be constructed or altered then consent is required from both the local authority and either the EA or BWA. This may also require the payment of a commuted sum and a bond.

If the development is adjacent to either a main river or a navigable waterway then consent is required to undertake any works within 7 metres of the brink of the bank.

The Water Resources Act 1991 and associated byelaws require you to apply for consent from the Environment Agency for works in, over, under or adjacent to main rivers.

Under the Land Drainage Act 1991, you will need the consent of the internal drainage board, or unitary or county council to construct or alter a culvert or flow control structure (such as a weir) on any ordinary watercourse. Some authorities also have their own byelaws.

HIGHWAY ACT 1980.

This provides for controls relating to highway infrastructure both private and public.

Any works that affect the Public Adopted Highway requires the consent and agreement of the Highway Authority. If a new Adoptable Highway is to be created then an agreement under Section 38 of the Highways Act will be required. This will involve the payment of a supervision fee and a legal fee to the Highway Authority together with a bond. If modification of the existing Adopted Highway is required then an agreement under Section 111 or 278 is required. Again, this will involve the payment of a supervision fee and a legal fee to the Highway Authority together with a bond. A licence to lay and maintain private services may also be required. Any works to Adopted Highways must be undertaken by an Approved Contractor.

Other orders may include the permanent stopping up or diversion of the Highway in order to facilitate the development. Alternatively, it may be necessary to temporarily stop up or divert the Highway, or undertake works under traffic control these works would be undertaken under the Road Traffic Act.

Water Industry's Act 1991.

This Act controls the drainage of a development and is the remit of the Local Water Company. Any alteration to private drainage be it an additional toilet or bathroom, or a new utility room would require an application under Section 106 of the Act. Similarly a connection to the Public Adopted Sewer system would also require an application under Section 106 of the Act, and the works undertaken by an Approved Contractor. In either case a fee will be required and works cannot proceed without consent.

If more than two properties are to be connected to a drain then that drain will be classed as a sewer which will require to be Adopted. This requires an Agreement under Section 104 of the Act. This will involve the payment of a supervision fee and a legal fee to the Water Company together with a bond, and the works undertaken by an Approved Contractor.

If the existing Adopted Sewer System needs upgrading then this will be paid for by the developer either through an Agreement under section 106 of the Town & Country Planning Act or Section 102 of the Water Industry's Act.

If the existing Adopted Sewer System needs diverting or extinguishment then an agreement under Section 185 of the Water Industry's Act. This will involve the payment of a supervision fee and a legal fee to the Water Company together with a bond, and the works undertaken by an Approved Contractor.

If no sewer is available then it may be necessary to requisition one. In this way the local Water Company may under the right circumstances construct a sewer through a third parties land but at the expense of the developer.

CONSTRUCTION (DESIGN & MANAGEMENT) REGULATIONS 2015 UNDER THE HEALTH & SAFETY AT WORK ACT.

Where the property is the Client's main residence only some of the regulations will apply. In cases where the house is not intended to be the Client's main residence or where more than one dwelling or the project is a commercial or non-residential development is being created and where the works will exceed 30days or 500 man days then the Construction (Design and Management) Regulations apply and a Principal Designer will need to be appointed prior to the completion of the final Planning Submission. This is because the regulations state that the Principal Designer must have an input in the design process prior to the designs becoming crystallized, and since there is no longer scope for minor amendments post Planning Consent it is at this stage that the Regulations are deemed to apply. Failure for any member of the project team to comply with these regulations renders that individual liable for prosecution by the HSE with stiff penalties which have an minimum fine of £5000 plus a six month custodial sentence, the Client is strongly advised not to ignore these regulations, and Consultants are duty bound to report infringement of these regulations to the HSE..A form F10 must be completed and submitted to the local office of the HSE.

The Regulations identifies six principal parties in a construction project:

1. The Client: This is the person or persons promoting the project. The Client is responsible for appointing a Principal Designer, competent Designers and a competent Principal Contractor. The Client shall also provide for sufficient time and finances to facilitate the safe and proper design and execution of the works and insure that sufficient welfare facilities are provided during the construction phase. The Client must provide all information in respect to existing services, past land or building use and any known construction. At the end of the construction phase The Client shall receive, from the Principal Contractor, the Safety File which contains all the "As Built" information relating to the development. The Client must add to this document should there be any subsequent changes, and must provide access to these documents for all subsequent Designers, Principal Contractors and Principal Designer who may be involved in any future works to the building be they extensions conversions or simply routine maintenance. The document must be passed on to a subsequent owner of the building.
2. The Principal Designer: Is appointed by the Client to advise him on matters relating to Health and Safety and to ensure that the Designers and Principal Contractor properly discharge their responsibilities in this regard. The Principal Designer:
   • Checks the competence of the Designers, Principal Contractor, and sub-contractors to verify their ability to design and construct the development in a proper and safe manner, taking in due regards to safe methods of construction and also the long term use and maintenance of the development.
   • Receives and advises on the Principal Contractor's Programme of Work and Safety Plan.
   • Insures that the Form F10 is completed and issued to the HSE.
   • Advises the Client on safety throughout the project but is not responsible for checking or enforcing the same.
   • Receives and verifies the Safety File at the end of the development Project.

   It is to be noted that the Principal Designer may also be the Designer.

3. The Designer: must be competent to design the type of development proposed and shall where practicable design out risks to health and safety both during construction and post construction. The design should account for the safe use and long term maintenance of the development including the ability to demolish any structures at the end of their use / life.
4. The Principal Contractor is the Contractor who will take responsibility for Health and Safety throughout the construction phase of the development. He will ensure that all sub-contractors are competent and co-operate fully with the Principal Designer. He will ensure that the Form F10 is issued and if necessary amended during the construction phase. He will draw up the programme of works, the safety plan and method statements and submit them for approval. He will also be responsible for assimilating the "As Constructed" records to include in the Safety File which he will prepare and submit at the end of the construction. Note that there can by only one Principal Contractor working on a site at any given time and that any other contractor (nominated or otherwise) must be a sub-contractor.
5. Sub-contractors: These are usually specialists in a particular area of construction. They must be competent in the area of expertise which they are to bring to the project, and are the responsibility of the Principal Contractor irrespective of whether or not they have been nominated by the Client.
6. The Client's Agent: This may be the Project Manager, Clerk of Works or Quantity Surveyor or a combination of the three. Their role is to insure the smooth running of the contract for the construction of the development on behalf of the Client.

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NEW ROADS & STREETWORKS ACT 1991.

This Act controls who shall be permitted to work in the Highway and the manner in which they will work. It also takes account of the provisions of the National Joint Utilities Group in respect to the positioning and buried depth of Statutory Undertakers cables, pipes and other apparatus. It provides for each utility to notify the others of any works affecting the highway and also requires the keeping and sharing of "As Laid" record drawings.