I've got an empty on my books like Sue's. The owner has built it himself over the past 25years, but refuses to get a completion certificate. I threatened him with CPO proceedure recently and the smart Alec pointed out that his building couldn't become a "home" untill it had recieved its certificate as it could not be considered habitable until then, therefore it didn't fall within the remit of our "empty homes" strategy.

Andrew Vickers

Empty Homes Officer

Nottingham City

I had an unfinished building - it had stayed that way for years. I applied for a Completion Notice under s94 of the Town & Country Planning Act 1990. This has to be confirmed by the Secretary of State but it's a simple procedure. Mine was confirmed but so far the owner has ignored it alas. However, ideally they will comply & then you can still proceed with EDMO if need be.

I am not speaking from experience but from my interpretation of the wording of the 2004 Housing Act and the SI 2006/337 which identifies "exceptions" for the purposes of the EDMO legislation.  

I started with the 2004 Act but on examining the SI found that most of what I had said was irrelevant. But I had written it by then so you will just have to put up with it.

The 2004 Housing Act

A dwelling, for the purposes of the act, is [s.132(4)(a)(i)] "a building intended to be occupied as a separate dwelling" etc etc.  There is nothing in the definition about the building need to have been certified in any way by anyone.  The key words from our point of view are "building", "intention" and "separate".

Looking at the words of the  Act in more detail, an Order, made under 134(5),  may make exceptions in various cases as listed in s134(6).  NB: these are NOT the actual exceptions - only the things that are "particularly" identified as suitable for exceptions. But let's for the moment treat these as though they are "the law" as this might conceivably have some bearing on interpretation by an RPT.

Works underway

Under these suggested exception categories, a dwelling could be exempt, if it is "undergoing repairs or renovation".  Almost by definition this exception could not apply to a new dwelling. But the issues identified here around permissions etc could equally apply to a building being renovated or repaired. This issue seems to come up with many EDMOs from my reading of RPT judgments and I am pretty sure they have been granted where works have been carried out so slowly or in such a desultory fashion that it seems unlikely that they will be completed.

Planning permission

Regarding planning permission it could fall under the exception categories tentaively proposed by  s.134(6)(d) if "an application for planning permission ....approval is outstanding".  An application for planning permission involves submitting a planning application form with the appropriate fee to the planning authority.  The planning authority is then required to determine the application within a certain period of time.  Once the planning application has been determined either by granting it or by refusing it, it does not seem to me that the application could possiby be regarded as  "outstanding" any more.  This case seems relatively straightforward because the process of submitting and refusing or granting a planning permission is well-defined and because specific reference is made to the Planning Act sections (at s.134(7)) to underline this.

Thus I don't think that any planning permission issue is at all relevant to the cases described in this thread.

Building Control

Regarding Building Control, the relevant wording in s134 would read "an application for... building control approval is outstanding".  This is more complicated because the definition is woollier.  The further defintion (under para (7)) says that "building control approval means approval for the carrying out of any works under building regulations". 

There are two different processes involved with Buildling Control approval.  (For fuller details refer to the Building Regulation Guidance. Full members of NAEPP, if logged in, can refer to www.naepp.org.uk/library-item/building-regulations-guidance). The first option is a "full plans" application where the owner says in detail what they intend to do by submitting detailed drawings etc.  This is an application a bit like a planning application: it goes through a number of phases and is then approved or not.  Again, the applicaton process involves a beginning, middle and end after which there is no longer an application outstanding.

The alternative route is the Building Notice procedure.  Here, Building Control are informed at the outset, but only in broad outline, that certain works are to be done.  Then (as also with the Full Plans procedure) the Buildlng Inspector is notified when the work reaches certain stages so he/she can inspect.  (=The Inspection Notice procedure). What is critical here is that, on inspection, approval is not sought for the "carrying out of works" but rather for the adequacy of works that have already been carried out. 

This inspection process of completed works  is surely very distinct from approving the "carrying out of works" - and the process is begun by the builder submitting an Inspection Notice not an application..   And it is quite clear that the final Completion Certificate cannot be for the "carrying out of works" as these have already been done.

In my view only a Full Plans Building Control application would constitute an "application for ...building control approval...for the carrying out of any works under building regulations" - which is the fully extended wording combining 134(6)(d) and 134(7) of the 2004 Act.

SI 2006/337

All the above is, at the end of the day, somewhat academic.  Because the actual exceptions are contained in SI 2006/337 not in the Act.  And there is no corresponding clause in the SI to s.134(6)(d) of the Act (or (c) for that matter).

All that is required is that the local authority must  substantiate their reasons for believing that the building won't otherwise be brought back into use in the near future. The wording says:

"(c) where the relevant proprietor—
(i) has undertaken or is undertaking repairs, maintenance or improvement works; or
(ii) has applied to a local planning authority or other authority for permission to make structural alterations or additions to the dwelling and he awaits the decision of a relevant authority on the application

it [i.e. the local authority] must give reasons to the tribunal why it considers that an empty dwelling management order is required to secure occupation of the dwelling."
In other words, if either of (c)(i) or (ii) were true, and the local authority did not provide reasons why an EDMO was necessary, it could be thrown out on procedural grounds: it would be an incomplete submission.  That is literally all this is saying.  There is no actual exception class at all around either repairs or permissions - only a requirement that the local authority demonstrate why they think an EDMO is required to secure occupation in such circumstances.  I am sure this is because those drafting the SI realised how difficult it would be to define a hard-and-fast, black-and-white exception category around repairs or permissions.

And the wording used in the SI in respect of permissions really underlines the points I made above about the Act: it is all about awaiting a response from the local authority on an application for "permission to make structural alterations or additions".  NB: Strictly speaking, that really only applies to Planning permissions, as a Full Plans Building Control Application is not an application for "permission" to do the works but seeks advance approval of the particular way in which works are to be carried out.  The builder can quite legally start work under a Buildlng Notice while the Full Plans are still  being considered and this is specifically discussed in Section 5 of the CLG Guidance referenced earlier.

More about the meaning of "Dwelling"

On the fundamental issue about whether nearly-finished buildings are dwellings, I believe that an RPT could well be minded to treat this on the facts of the matter: is the dwelling to all intents and purposes, a completed dwelling or nearly so? As mentioned above, there is certainly nothing to say they are constrained by "certificates" or "approvals".   This issue would also apply, potentially to a dwelling that had been removed from the valuation list, had been empty for 10 years etc.

Andrew raised a point about an owner claiming that a building had not received its completion certificate and was therefore not a home and thus outside the scope of an empty homes strategy.  There is no procedural requirement for an EDMO action to be justifed in fine detail by the empty homes strategy (the guidance in any case makes reference to an "empty property strategy" not an empty homes strategy) and again common-sense interpretations would come into play.  The owner does not, as far as I can see,  have a peg to hang their nit-picking objection on, clever though they may think it.

Summary

The wording of the Act and of the Order are both intended to have a common-sense interpretation.  They are meant to cover the situation where the local authorrity says to an owner "You have an empty dwelling and you are not doing anything about it" and the owner can legitimately say "I can't do anything for the time being because I am awaiting the results of an application to the local authority".  The wording has been quite carefully drafted to cover that specific situation - not the absence of a completion certificate or failure of an owner to progress matters.   In interpreting wording of the legislation, the "Application" means application, "permission" means permission - not notices, not things that don't need permission, not certification. 

If something is genuinely in process, and the owner is awaiting a response from  the local authority, the local authority has to justify why it still wants to take out an EDMO. Otherwise - carry on.