A Bit About Searches & Surveys

Monday, 04 February 2019

Simon Newman

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When dealing with commercial properties it is advisable to carry out property searches and surveys along similar lines to when you buy a new house. Here we outline the main types and why they are important.

There might be occasions when it isn’t necessary to carry out searches at all, other occasions when rudimentary searches are appropriate and other cases where it would be advisable for you to carry out a full and detailed set of searches.

Similarly, there are occasions when it is highly advisable to have a surveyor do a survey of premises you are looking at buying or leasing.

This guide sets out the main types of searches and surveys to enable you to understand what these are and make an informed decision on whether you require them.

Part One : Main Types of Searches

Local Authority Searches

This is a report by the Local Authority dealing with a whole mass of information relating to matters affecting the property and the surrounding area.

Among other things, the Local Authority search covers the following:

• Planning control history

• Building control history

• Nearby road schemes and motorways

• Contaminated land

• Whether the area is affected by radon gas

• Listed building status

• Conservation areas

• Tree protection orders

• Improvement or renovation grants

• Smoke control zones

• Future developments

There are a number of optional extras that can be added to the standard Local Authority search (this is called Con29(O)) and this covers the following matters:

• Road proposals by private bodies

• Public paths or byways

• Advertisements

• Completion notices

• Parks and countryside

• Pipelines

• Houses in multiple occupation

• Noise abatement orders

• Urban development areas

• Enterprise zones

• Inner urban improvement areas

• Simplified planning zones

• Land maintenance notices

• Mineral consultation areas

• Hazardous substance consents

• Environmental and pollution notices

• Food safety notices

• Hedgerow notices

• Common land, town and village greens

Local Authority searches generally take a week or two to arrive after they have been ordered. Each Local Authority charges their own fee and these vary quite considerably from council to council. Typically, Local Authority Searches can cost anything from less than £100 to about £250 or more.

Land Registry Searches

This amounts to obtaining a copy of the entry on the national land register of a particular property.

The Land Registry entry should be carefully examined in every single property transaction (whether leasehold or freehold). The entries for a particular property will include a plan and description of the property along with details of the registered title to the property. This will include the following matters:

• The registered owner of the property and details of when it last changed hands

• Details of restrictions on rights to deal with the property

• Any restrictive covenants

• Whether there is a mortgage registered on the property and/or other types of registered security

• Things such as rights of way and other rights and restrictions that could affect the property

Land Registry searches are quick and easy to obtain and normally cost about £10 or so.

Water and Drainage Search

This is a report made by the local water company. The search provides information regarding water and sewerage services for a particular property and details of whether there is drainage for surface water (surface water is effectively rain). There is also information on whether the condition of the public sewers servicing the property present a risk of flooding. There is also information about whether the water to the property is metered and whether there is any issue with water pressure and various other matters that could be relevant to a business that is dependent on uninterrupted water supply.

Mining Searches

The most common types of mining searches are coal and brine and tin in Cornwall. These searches show whether there have been mining activities in the vicinity of a property. The search reports give details of the likelihood of ground disturbances and subsidence as a result of past or current mining activity.

Utility Searches

Utility Searches Provide Information Relevant to the Property relating to the supply of gas, electricity and telecommunication services. These reports tell you whether the property is connected to a mains supply and about pipes and cables etc.

The price of these searches varies.

Environmental Searches

This search reports on whether past use of a property or land nearby could have led to land contamination. An example might be where there has been some kind of past industrial use of a property where the land could potentially be contaminated with dangerous chemicals.

These searches are quite quick to obtain, they normally come back within about two days of them being ordered. Prices do vary but are roughly in the £35-£50 band.

You should note that the environmental search report does not actually say whether the property is or is not contaminated. It reports on risk and an inspection in person by an environmental surveyor would be required to confirm for certain.

Chancel Repair Search

Chancel Repair Liability is an anachronistic right whereby some Parish Churches are able, for historical reasons, to charge local occupiers for repairs to the Parish Church. This is a very controversial right and has been the subject in recent years of several high profile court cases. It all comes from where, in the dim and distant past, land that had previously belonged to the Parish Church was sold off and the obligation to pay for repairs to the Parish Church was inherited by the new owners.

A Chancel Repair Search tells you whether a property is in an area which could give right to a Chancel Repair Liability. Where there is a potential liability, this can easily be militated by taking out an insurance policy.

Both the Chancel Repair Search and any insurance policy are relatively low cost. The search should be considered for any property buyer that is relatively close to any Parish Church.

Part Two : Surveys

Building Condition Survey

This should always be considered when taking on new premises whether you are taking the freehold or leasehold. In both cases, to some extent you will be liable for the cost of repairs to the building or at least a part of the building. The current condition of the property is therefore very relevant.

A Building Condition Survey would be where a Chartered Surveyor inspects the property and reports to you on its condition and any particular concerns and the need for future repairs.

In some cases it might be appropriate for your surveyor to produce what is called a “Schedule of Condition”. A Schedule of Condition is a fully itemised schedule of the condition of each part of the building or property and would highlight all items of disrepair or whether future repairs might be necessary.

Valuation Survey

This is where your surveyor assess the value of a property. It could either be the price of the freehold or the rental value. You should consider having this done if you have doubts about whether you are paying a market rate.

Electrical, Heating and Gas Surveys

These are reports on the condition of the electrical, heating or gas systems within the property. As a bare minimum you should obtain a Gas Safety Certificate where there is a gas supply to any property. You should also consider whether you require an Electrical Safety Certificate prior to taking on any new premises. There are also surveys you can have done to report on the heating system and whether it is fit for its purpose.

Drainage Inspection

This is where you have a full inspection of the drainage system to make sure that it’s fit for purpose and to ensure that it is in a proper state or repair and is not likely to need expensive repairs in the near future.

Simon Newman - January 2017

For more information about this article or anything else you would like advice on please contact us free on 0800 1777 522.

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Leeds Public Inquiry: Navigating Licence Lending and Maintenance Missteps 11 September 2024

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It is easy to fall foul of technical aspects of operator licencing. Whether of goods vehicles or passenger service vehicles. One commonly seen relates to disc loaning or licence lending.

An operator is generally not permitted to allow other businesses to ‘use’ the O Licence. And to deliberately do so would likely lead to revocation of the licence, and possible disqualification (perhaps indefinitely) of the legal entity or person behind the licence from holding or even applying for a licence.

Some operators, while not acting with deliberate intent, inadvertently blur the lines of who is ‘using’ or operating the vehicles. One such case was an operator (a limited company) in the North-East traffic area that we represented at the Leeds OTC public inquiry (PI) room.

Our client successfully ran ( and continues to do so) a niche business with highly bespoke heavy goods vehicles. It used several legal entities, including limited companies, to conduct its well-established business. It’s not unfair to say the business model was unusual and complex. (Although the Traffic Commissioner (TC) is not a regulator of businesses, to the extent that matters touch on O Licencing, he/she has regulatory powers to exercise against operators. ) An additional factor was that it involved a restricted licence, meaning that the vehicles could only carry the goods of the entity with the licence.

Without going into all the detail, the operator was using vehicles in such a way that raised the question of whether other legal entities were using the licence, or otherwise unlawfully benefitting from it, and carrying the goods of another entity (Who is the ‘user’ of the vehicle and the true operator can be very complex, and is determined by multiple factors).

We gave our comprehensive legal opinion on all matters that would foreseeably be raised at the hearing. This included urgent advice on an immediate change to how the company was using its vehicles; the company’s maintenance and compliance documentation; and how a different approach would be needed, particularly in respect of brake testing, daily walkarounds and defect reporting/remedying. The company was keen to learn and was receptive to our advice. This involved a site visit, email correspondence, and video-conference/telephone meetings.

All requested maintenance documentation and a business model was submitted in advance to the OTC.

At the hearing the company was able to demonstrate that it was operating vehicles within the authorised parameters. It had learned much in the build-up to the PI and was willing to implement advice - even as late as the day of the PI. The TC conducted a balancing exercise. He concluded there had been a falling-short of O Licence standards in respect of vehicle use and maintenance, and that the company was late to take on professional advice. On the other hand, new systems were in place and dramatic improvements made. OLAT courses had either been booked or completed and the services of a transport consultant were engaged. The almost inevitable regulatory action in this case was limited to a short curtailment involving some vehicles, and undertakings added to the licence. The client considered this a significantly good result considering the consequences of losing the licence or other kinds of regulatory action – which potentially had been on the cards based on the TCs public inquiry brief.

Case Study - Operator Application, Pheonix Arrangement and Fronting 10 September 2024

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As with many applications or ‘regulatory’ public inquiries, the Traffic Commissioner (TC) has before her or him a set of papers prepared by their case worker. The fact a public inquiry has been convened means there are concerns. The papers alone cannot determine the TCs decision—one way or the other. It is imperative therefore that applicants or licence holders prepare their case thoroughly. If prepared properly, it will help assist the TC to make a favourable decision. If not, the TC may conclude that the case is as it appears on the papers – or even worse.

We recently represented a company that applied for an O Licence (the applicant). The matter was brought to public inquiry because of serious concerns that the new company was either a front for a company that had gone into administration, and/or a phoenix arrangement was taking place; transport manager (TM) considerations; and the application form had not been completed correctly—causing an appreciable misrepresentation of the facts (The simple filling out of the application form is the first opportunity the TC has to see anything about the applicant, including whether they are trustworthy!)

After taking instructions, we could see there was plenty of scope to prepare a strong case for the grant of the application. The applicant’s connection to a company that had gone into administration: any links were tenuous and superficial. There was no phoenix arrangement because there were no substantive connections between the two entities, or relevant individuals. The incorrectly filled-out application form was a genuine error (even though it appeared otherwise).

On the professional competence issue, we advised that a replacement TM was necessary. The originally nominated TM was, in our opinion, not suitable in this case. A TM may have the qualification, but depending on the facts, more is required, including experience, actual knowledge and other capabilities. Our client accepted our advice and contracted another TM, contingent on the grant of the licence.

Most, if not all, of the TCs case directions were fully adhered to. Documentary evidence and representations were submitted two weeks in advance.

Most of the work for the inquiry was completed beforehand. That just left the hearing. We advised on what the hearing would entail and how best to present first-person evidence. Hearings can be particularly stressful, especially if things are left last minute, or not addressed properly. In the end, this hearing was fairly straightforward and relatively short. The TC was satisfied that the evidence submitted adequately addressed concerns. Further evidence and submissions were presented at the hearing. Assurances were given, including a willingness to have conducted an independent audit. As at the date of the hearing, it was clear that the applicant had a good knowledge of O Licence compliance requirements and of their specific kind of haulage work. The application was granted with immediate effect with authorisation for several HGVs.

Case Study - 'S' Market Prohibition and Operating in Wrong Entity 09 September 2024

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We were instructed by a business primarily involved in farming and authorised to operate six large goods vehicles

The public inquiry was called before the Traffic Commissioner to consider the operator’s repute. Revocation, suspension, curtailment of the licence, and possible disqualification, were also under consideration (under sections 26(1)(b), 26(c)(iii), 26(e) and 26(f) and 35 of the Goods Vehicles (Licensing of Operators) Act 1995.

Background: the operator (like many operators) had not understood the consequences of changing its legal entity. In this case from a sole trader to limited company. And that, generally, in such circumstances, a licence must be applied for in the name of the new legal entity.

Over the period of some months, the operator had started to run some of the business through the limited company; some thought the sole tradership. Meanwhile, one of its HGVs was stopped by DVSA at a roadside encounter. The vehicle was unfortunately given an ‘S’ marked prohibition for significant failings in its braking system. After questioning the operator, the DVSA concluded that there had been an outright change of legal entity. There were also some other less-significant shortcomings, relating to finances, daily walkaround checks, and paperwork issues .

Together, these were serious failings to overcome at PI. Much would depend on how responsive to our advice the operator and transport manager would be.

We were instructed in good time, and promptly advised on all relevant matters. DVSA had concluded there had been a categoric legal entity change, but we were able to give our opinion on this somewhat nuanced area of law. We advised that this could easily lead to the revocation of the licence, but not necessarily. A robust response would be needed in all areas and any shortcomings remedied as soon as practicably possible.

After several meetings, our client and the TM were clear on what needed to be done before the PI. We also advised on what to expect at the PI itself, including what questions might be asked. The client was responsive and we managed to adhere to the OTC deadlines. During our instructions, other matters emerged—ones not raised in the TCs PI Brief papers. We advised on these also to pre-empt further potential questioning.

The hearing went as near-to-plan as could be expected. The operator and TM were well prepared for the hearing. They were able to fully satisfy the TC on most matters raised. The TC accepted our final submissions that there had never been any attempt to deceive or gain an unfair commercial advantage (there had been no such advantage ) and that any mistakes were inadvertent. We’d submitted supporting evidence in advance.

The simple decision was that the TC curtailed the margin on the licence for two weeks. This resulted in no material disadvantage to the operator. On a balance of probabilities, the TC was satisfied that the business would be compliant as the holder of a goods vehicle operator licence. The effect was that the operator was now in a position to continue using its O’licence without interruption, and run its well-established and successful farming business.

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A Bit About Searches & Surveys

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Simon Newman

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