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Our panel of experts, Adrian Barlow, Helen Turner, Eddie Goldsmith, Nicola Preston and Paul Coombes gives its view on the impact of the updated CON 29 and CON 290 enquiry forms and the significance of the inclusion of community value and the community infrastructure levy (CIL), and the Growth and Infrastructure Act 2013.
Is it likely that turnaround times for responses will be longer, and if so could that delay property transactions?
Adrian Barlow: The new CON 29 and CON 29O are a necessary evolution of the enquiries we need to make. The additional enquiries might impact on turnaround times and that could delay property transactions, but I suspect in the vast majority of cases they won't. For public rights of way, for example, it's an enquiry we'd been making anyway. There will continue to be times when waiting for search results delays transactions but I doubt this will be the norm.
There could be an impact on the amount of due diligence property lawyers need to undertake, though. The new enquiry on rail projects asks only if there are any projects within the local authority's boundary. Geographically, that could be quite a wide area. A positive answer will need further investigation even though the project may be quite remote from the property.
Helen Turner: Following review of the proposed CON 29 and CON 290 forms, for councils it does appear that the amended search questions will require more input from officers around the local authority than is currently required in order to turn round the searches. The questions that will require specific input will be the questions relating to assets of community value (ACVs) and CIL.
As required by the Localism Act 2011, local land charges hold the information as to when the ACV was registered, but the additional questions raised will require further and specific officer input. I am currently unaware of any plans as to whether local land charges departments will hold the additional information, so this information will need to be obtained on an application-by-application basis from the service departments involved.
An additional concern to a buyer is whether councils' will increase their fees for local authority searches in order to cover the costs of officer input. At present I would think that this is something that is not being considered by authorities especially in those where CIL has not been implemented until a clear picture is obtained of just how much officer input is required.
Clarification over who will answer these questions is a discussion yet to be had at my own authority in relations to CIL and I suspect that this is also the same of other local authorities where CIL has not yet been implemented. As to whether the additional information will be held centrally would need to be decided within these discussions together with any discussion over any further investment that may be required. With the possibility of the Land Registry taking on local land charges I suspect that there will need to be a move to hold all information centrally so that, if required, the databases are transferred to the Land Registry. However, it may be the case that local land charges departments act as agents on behalf of the Land Registry and continue to hold all the information on their behalf.
Due to the possibility of increased officer input and the lack of investment in times of austerity, the turnaround for local authority searches could well increase. As to whether this would delay property transactions would depend on how quickly individual authorities turn their searches around in. It would be advisable for local land charges departments to agree timeframes for the information to be provided with the relevant departments, and do it now, in order to prevent any delay.
A further consideration is how much of an impact this will have on personal search companies. At present the companies are able to obtain all the information they need in order to complete the enquiries. If additional officer input is required, any questions that are incomplete will need to be put to the local authority at an additional cost to the buyer. I can see this contributing to a delay in the property transaction if the conveyancer chooses to use a personal search company as, in the past they have been quicker, rather than applying to the local authority directly.
Eddie Goldsmith: It is inevitable that any change in the process for conveyancing has the risk of delaying property transactions. The introduction of a revised CON 29 and the CON 290 is an acknowledgement that it is or will be good practice to investigate these matters with the local authorities in what seems to be an ever increasing world of searchable public data.
It is too early to say with any certainty whether the extra burden or reporting by councils will increase the price they charge for their searches, but it seems inevitable that more work will mean more cost. This cost as always will eventually find itself at the door of the consumer who already is facing significant other fees particularly punitive levels of stamp duty. It is also too early to say whether there will be any or any significant delay in local authorities processing these requests, but with the pressure on the public sector and in particular local authorities it would not surprise me for a scintilla if that were the case.
The conveyancing sector has been facing information overload for many years and while these extra enquiries are laudable it is unfortunate if this ultimately increases the cost of conveyancing or the time taken to complete transactions.
Nicola Preston: There are additional questions to be answered and so more time will be needed for the responses. Thus it will take the local authorities longer to complete the forms than hitherto. All of the information requested is within their knowledge, however, and once they have set up their systems to cover the additional information now required, I would have thought it unlikely that there would be any significant delay. I would expect that initially there will (or may) be a delay, which could cause a delay in completion in a minority of cases, but that such delay would be (or, perhaps, should be) short-lived.
Paul Coombes: Overall we feel it should have little impact on response times. If there is a slight delay in collating the newly relevant information, it is offset against time savings in establishing the information elsewhere--the inclusion of roadways, footways and footpath queries is both sensible and of value to both the conveyancer and home buyer.
In many cases conveyancers are able, through providers like ETSOS, to establish and compare average turnaround times for both council (official) and regulated (personal) local authority reports. As such, they are able to act in the best interests of their client and select the most suitable report for the circumstances depending on lender requirements and timescales.
The reality of conveyancing is that searches rarely cause a delay in the house buying process. Any innovations that put more information in the hands of the conveyancer and the home buyer will ultimately only benefit what is, for many, the most expensive and stressful purchase of their lives.
Adrian Barlow, partner and head of the property group at Pinsent Masons
Helen Turner, projects lawyer at Peterborough City Council
Eddie Goldsmith, partner at Goldsmith Williams Solicitors and chairman of the Conveyancing Association
Nicola Preston, barrister at No 5 Chambers
Paul Coombes, sales & marketing director at ETSOS, an online property portal for law firms and estate agents
Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
The article was first published in LexisPSL Property on 5 June 2014. Click here for a free one week trial of Lexis®PSL Property.
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