Professional negligence in property transactions concerning “car-free” parking restrictions

Parking permit restrictions as part of “car-free” developments within controlled parking zones can often lead to problematic issues for homeowners and tenants alike. These restrictions can have a substantial negative effect on the value of a property, and they can pose awkward problems for some occupiers who, due to their vocation, or for other reasons, may need the freedom and flexibility to park a vehicle on the side of the nearest public highway.

In this article, our Planning consultant solicitor Ben Garbett gives an overview of some of the main issues.

Invalid and unenforceable permit restrictions

A ‘planning obligation’ (commonly known as a section 106 agreement or unilateral undertaking) can be found to be invalid and unenforceable if it has not been entered into using the correct legal powers. Read more on this issue here. The problem appears to be widespread. In such situations, the authority concerned may be persuaded into accepting (or coerced by threat of judicial review) that it would be illegal to withhold issuing a parking permit.

Applications to modify or discharge restrictions

Usually the planning obligation is valid and enforceable, however, and unfortunately nowadays it can be somewhat difficult to obtain a successful outcome using the statutory application method. This is the right for any person to apply to the planning authority to modify or discharge the planning obligation, albeit this route is only available in respect of a planning obligation which is more than five years old.

Conveyancing errors

Another source complaint which arises all too often in practice, is where a new owner or occupier is left disgruntled because they had not been aware of the parking permit restriction at the time they took up a new lease, or when they bought an affected property.

Typically, such planning obligations contain terms which are designed to bring these matters to the attention of the proposed buyer, but the fact of the matter is these issues are not always correctly flagged up in the agent’s sales particulars or by sellers in their replies to a buyer’s pre-contract enquiries. This could potentially leave sellers and agents legally liable.

However, these restrictions should always be registered by planning authorities on the local land charges register, though sometimes rarely that is not done correctly. In some cases, a solicitor or other professional advisor has failed to report on the nature of the restriction to the proposed buyer (or tenant). A buyer will suffer an instant loss of value compared to the price they would have paid; or worse, they would never have entered into the transaction at all because the parking rights are crucial to the overall desirability of the property. In such cases, the advisor may be professionally liable in negligence, with compensatory damages being awarded to the buyer for the losses they have suffered, but it is always important to seek advice.

If you have questions or concerns about any of the issues raised in this article, please contact Ben Garbett.