Inherited Property With Planning Issues: What Executors Need to Know

Discovering that a property has an unresolved planning issue during estate administration can feel alarming. In practice, many such issues are manageable — provided you understand what you are dealing with, act promptly, and take proper legal advice. This guide explains the key planning concepts that affect inherited property and the options available to executors and administrators.

Enforcement Notices Run With the Land

A planning enforcement notice is issued by the local planning authority (LPA) against a specific piece of land or building when it considers that a breach of planning control has occurred. Crucially, the notice is registered on the Local Land Charges Register and binds whoever owns the property at any given time — not simply the person who carried out the unauthorised work.

This means that when a property is inherited, any outstanding enforcement notice becomes the responsibility of the estate and, ultimately, whoever receives the property as a beneficiary. A buyer who subsequently purchases from the estate will also be bound by it. Compliance with an enforcement notice is not optional: failing to comply is a criminal offence carrying an unlimited fine on conviction in the magistrates' court or Crown Court.

The solicitor instructed to administer the estate or handle a sale will carry out local authority searches as standard. These searches reveal any enforcement notices registered against the property. Executors should not attempt to conceal planning issues from buyers — doing so could expose them to claims for misrepresentation or fraud.

The Four-Year and Ten-Year Immunity Rules

English planning law (under the Town and Country Planning Act 1990, as amended) provides immunity from enforcement action once a certain period has passed since the breach. Understanding which period applies is the first step for any executor dealing with a suspected planning issue.

The four-year rule applies to:

• Operational development — for example, building an extension, erecting an outbuilding, or carrying out engineering works — where the breach became immune four years after the operations were substantially completed
• Unauthorised change of use of a building to use as a single dwellinghouse, which also attracts the four-year period

The ten-year rule applies to:

• Any other change of use of land or buildings (for example, splitting a house into flats or using agricultural land for residential purposes)
• Breach of a planning condition

Once these periods have elapsed without enforcement action being taken, the breach becomes lawful by passage of time — though it is not automatically documented as such. To obtain formal confirmation of immunity, an application for a Lawful Development Certificate is required (see below).

How Planning Issues Are Discovered During Conveyancing

Whether the estate is selling the property or transferring it to a beneficiary who is taking out a mortgage, the conveyancing process will almost always include a local authority search. This search reveals:

• Any enforcement notices, stop notices, or breach of condition notices registered against the property
• Planning permissions granted (and any conditions attached to them)
• Tree Preservation Orders, conservation area designations, and listed building status
• Whether the local authority has any outstanding planning enforcement investigations (revealed via CON29 optional enquiries)

If the property has an extension, outbuilding, or loft conversion that the deceased added without obtaining planning permission, or without complying with permitted development rules, this may come to light when the buyer's solicitor raises enquiries. The executor's solicitor will need to address these enquiries honestly and thoroughly.

A buyer's mortgage lender may refuse to lend on a property with an unresolved planning breach, or may require indemnity insurance to be put in place. Indemnity insurance for planning breaches is widely available in the property market and is a common practical solution where the breach is old and unlikely to be enforced.

Options for Executors Facing Planning Issues

There are three main routes an executor can take when a planning issue is identified.

1. Apply for a Lawful Development Certificate (LDC)

An LDC is a formal document issued by the LPA confirming that an existing use or operation is lawful at the date of application. It provides the strongest available protection — once granted, the LPA cannot take enforcement action. An application requires evidence of the breach (for example, photographs, contracts, invoices, statutory declarations) to demonstrate that it occurred and that the relevant immunity period has elapsed.

The application fee is currently £234 in England (as at 2024). The LPA has eight weeks to determine it, though complex cases can take longer. An LDC increases saleability and removes the need for indemnity insurance.

2. Apply retrospectively for planning permission

Where the immunity period has not yet elapsed, the executor may choose to apply for planning permission after the fact. This is a formal application treated in the same way as any other planning application — the LPA will consult neighbours, consider the development plan, and reach a decision on its planning merits. Retrospective permission does not guarantee approval. If refused, the enforcement position remains live.

3. Disclose and price accordingly

Where an LDC application is not straightforward and retrospective permission is uncertain, the estate may sell the property with full disclosure of the planning issue, at a price that reflects the uncertainty. The buyer would typically obtain planning indemnity insurance. This approach is pragmatic where the estate needs to conclude the administration promptly and the planning risk is considered low in practice.

What Happens if the Local Authority Takes Enforcement Action During Administration

If the LPA issues or continues to pursue an enforcement notice while the estate is being administered, the executor must respond in exactly the same way a living property owner would. The options include:

• Complying with the notice by the date specified (which may mean demolishing an extension or returning the property to its authorised use)
• Appealing the notice to the Planning Inspectorate within the time limit stated on the notice (usually 28 days from service, though this can vary)
• Applying for planning permission for the development, which automatically suspends the enforcement notice while the application is under consideration

Failing to comply with a valid enforcement notice without pursuing an appeal can result in prosecution of the estate. The LPA also has powers to carry out remedial works itself and recover the costs from the estate. Executors who are unsure how to respond should instruct a planning solicitor or planning consultant promptly — the appeal deadlines are strict and non-extendable.

Planning Issues and Probate Valuation

Where a property has an unresolved planning breach, this can affect its market value — and therefore the value declared to HMRC for Inheritance Tax purposes. A property with an outstanding enforcement notice, or one where an unauthorised extension cannot be sold freely, may be worth less than a comparable property with a clean planning history.

The probate valuation should reflect the open market value of the property in its actual state — including any planning encumbrances. Executors should discuss this with the valuer they instruct and ensure the valuation report notes any relevant planning circumstances. HMRC's District Valuer Service may challenge a valuation, so it is important that the basis for the figure is clearly documented.

If the planning issue is resolved after probate is granted — for example, an LDC is obtained — this may increase the property's value. In that case, the executor should consider whether any amendment to the IHT return is required and take advice from a tax adviser accordingly.