Top 10 Residential Development FAQs

1. Do I need planning permission for my proposed development?
2. What legal checks should I carry out before acquiring land?
3. What are Section 106 agreements and how do they affect my project?
4. How do I manage disputes with contractors or consultants?
5. What are my responsibilities under the Building Safety Act 2022?
6. How do environmental regulations impact development?
7. What are the legal implications of land banking?
8. What contracts are essential in residential development?
9. What are the risks of developing on heritage or conservation land?
10. How do I ensure compliance with energy efficiency standards?

1 - Do I need planning permission for my proposed development?

Generally in England, you will need planning permission if you are:

- Building a new dwelling or creating additional residential units

- Erecting a new building

- Making a significant extension or alteration

- Changing the use of land or a building (for example, agricultural land to residential development).

However, some works may fall under permitted development rights. Developers should consult the Town and Country Planning Act 1990 and the National Planning Policy Framework for guidance. Some rights may be restricted by planning conditions, Article 4 Directions, conservation area controls, listed building status, or other local designations

2 - What legal checks should I carry out before acquiring land?

Due diligence is essential. This includes:

- Carrying out title searches to:

- verify ownership and seller’s ability to disposal of land

- identify restrictive covenants, easements, ransom strips, options, pre-emption rights and overage obligations; and

- check rights of access, services and third-party rights affecting the site

- Reviewing planning history and existing permissions.

- Checking local plan allocations and planning policy designations.

- Assessing Section 106 obligations, Community Infrastructure Levy (CIL) exposure and any planning enforcement issues; and

- Identifying conservation area, environmental constraints and biodiversity requirements, flood risk, heritage, Green Belt or other planning constraints

- Highways checks to confirm adequate legal access to the public highway and reviewing adoption status and visibiility splay requirements

- Utility Company checks to establish service connections.

3 - What are Section 106 agreements and how do they affect my project?

A Section 106 agreement (often referred to as an s106 agreement) is a legally binding planning obligation entered into between a developer and the local planning authority under section 106 of the Town and Country Planning Act 1990. Its purpose is to mitigate the impact of a development and make it acceptable in planning terms. The obligations run with the land and will usually bind future owners of the site.

A s106 agreement may require a developer to provide affordable housing, make financial contributions towards local infrastructure and community facilities, deliver education or healthcare provision, undertake highway improvements, provide open space, or implement sustainable transport measures such as travel plans and travel-sharing initiatives. The scope of the obligations will depend on the nature, scale and impact of the proposed development.

4 - How do I manage disputes with contractors or consultants?

Disputes with contractors, consultants and other project team members can arise from delays, defective works, payment issues, variations or allegations of professional negligence. The best protection is to ensure that clear contractual arrangements, appropriate appointments and robust project management procedures are in place from the outset. If a dispute does arise, early legal advice and proactive engagement can often prevent matters from escalating. Alternative dispute resolution (ADR) methods such as negotiation, mediation, adjudication or arbitration may provide a quicker and more cost-effective solution than court proceedings.

5 - What are my responsibilities under the Building Safety Act 2022?

The Building Safety Act 2022 introduced significant reforms to improve the safety of residential buildings and places greater responsibility on developers, designers, contractors and building owners. The Act is particularly important for higher-risk residential buildings, but many of its requirements have wider application across the development sector.

As a developer, you must ensure that appropriate arrangements are in place to plan, manage and monitor building work so that it complies with building regulations and relevant safety requirements throughout the project. You must also appoint competent designers and contractors, ensure that safety responsibilities are clearly allocated and maintain appropriate records demonstrating compliance.

For higher-risk buildings, additional requirements apply, including oversight by the Building Safety Regulator and compliance with a more stringent approval regime before construction and occupation. Developments may require specific Building Safety Regulator approvals and consents before homes can be occupied.

The Act also strengthens accountability for defective construction and building safety defects. Developers should maintain comprehensive project documentation, ensure robust design and construction oversight, and carefully manage contractual and insurance arrangements.

6 - How do environmental regulations impact development?

Environmental issues identified during due diligence can reduce land value, require remediation works or, in some cases, make a site undeliverable. Environmental liabilities are therefore a key consideration in acquisition contracts and due diligence exercises. Developers must assess flood risk, biodiversity net gain, contamination, and proximity to protected areas (e.g., SSSIs). Non-compliance can lead to enforcement action or project delays.

7 - What are the legal implications of land banking?

Land banking is not unlawful in itself. In the residential development sector, it typically refers to acquiring or controlling land for future development, often through freehold ownership, option agreements, promotion agreements or conditional contracts, and holding that land until it is brought forward for planning or development. However, there are a number of important legal implications, with the most significant recent legal development being the move, under the Levelling-up and Regeneration Act 2023 towards greater transparency of land ownership and contractual control and the recent creation of the Contractual Controls Register. Holding land with planning permission also creates risk of expiry of planning permission and changes in planning policy. Land banking has been scrutinised extensively by the Competition and Markets Authority (CMA). For major housebuilders, land holding strategies may therefore attract competition scrutiny, political scrutiny and reputational risk.

8 - What contracts are essential in residential development?

Key contracts include:

- Conditional sale and purchase agreements

- Unconditional sale and purchase agreements

- Option agreements

- Promotion agreements

- Hybrid agreements

- Pre-emption agreements

- Collaboration agreements

- Overage agreements

- Construction contracts and development agreements

- Joint venture agreements

- Plot sale contracts.

9 - What are the risks of developing on heritage or conservation land?

Heritage restrictions can complicate planning approval as local authorities must give special consideration to conserving heritage assets and their setting when determining planning applications. Developers must therefore consider impact on listed buildings, conservaton areas, scheduled monuments or historic parks and gardens when navigating both local and national policies, The result is often longer planning timescales, additional consultation requirements, more detailed design scrutiny, greater risk of refusal and risk of judicial review if objections arise.

10 - How do I ensure compliance with energy efficiency standards?

To ensure compliance with energy efficiency standards on a residential development in England, developers need to address energy performance from the earliest design stages rather than treating it as a building control issue at the end of the project. Properties must meet Minimum Energy Efficiency Standards (MEES). Residential lettings require an EPC rating of E or above, with future targets aiming for C or higher. The primary development legal requirements arise from:

- Building Regulations Part L (Conservation of Fuel and Power)

- Building Regulations Part F (Ventilation)

- Building Regulations Part O (Overheating)

- Future Homes Standard; and

- Building Safety Act 2022 requirements where applicable.

Compliance should be assessed at concept design stage to avoid expensive redesign later.

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