Novating consultant appointments at land sale
A buyer inherits the permission automatically and the evidence base not at all. Novation, assignment and reliance letters decide whether the reports are usable.
When you sell a site with a planning permission on it, the permission transfers and the evidence base behind it does not. Section 75 of the Town and Country Planning Act 1990 makes a permission enure for the benefit of the land and of all persons for the time being interested in it, so the buyer inherits the consent automatically. The transport assessment, the ecology survey, the flood risk assessment and the drawings that persuaded the council are contracts and copyright works owned by other people. If you want to novate consultant appointments at land sale, that has to be arranged deliberately, consultant by consultant, before exchange.
What transfers with the land and what does not
Three categories behave differently, and conflating them is where deals come unstuck.
The permission itself, any conditions attached to it and any section 106 obligations run with the land. Section 106(3) of the 1990 Act binds successors in title, so the buyer takes the affordable housing commitment and the trigger payments whether or not anyone mentions them at exchange. A condition requiring approval before works start, once discharged, stays discharged.
Community Infrastructure Levy liability is procedural rather than proprietary. Where the seller has submitted an assumption of liability, that assumption can be transferred to the buyer using the council's transfer of assumed liability form, but only before development begins on site. Miss that window and the person who assumed liability stays liable, which is an expensive way to learn the rule.
The reports, surveys, models and drawings transfer only if someone makes them transfer. A planning application is a public document and the buyer can download the submitted PDF from the council's website. That is not the same as having the right to rely on it, to reissue it, to amend it for a reserved matters application, or to sue the author if it is wrong.
Novation against assignment
Assignment moves the benefit of a contract. The buyer can be given the right to enforce the appointment against the consultant, including the right to claim for defective work, but the burden stays with the seller. The seller remains the party who owes the fees, and the consultant owes no new duties.
Novation replaces the contract. It is a three-party agreement under which the consultant releases the seller and accepts the buyer in its place, so the buyer becomes the client with all the rights and obligations. Consultants will not sign one without being asked, and most will want something in return: fees brought up to date, a limitation of liability confirmed, and sometimes a fresh fee for the administrative work.
Two forms are in common use. A novation taking effect from the date of the agreement leaves pre-novation breaches with the seller. A novation drafted so that the contract is treated as always having been between the consultant and the buyer, often called a full or ab initio novation, gives the buyer the stronger position and is what funders usually press for. Consultants resist it, because it exposes them to a client they never chose for work they have already done. Expect that to be negotiated.
There is a quieter third option. A reliance letter or duty of care deed leaves the original appointment alone and gives the buyer a direct right to rely on a named report, usually with a liability cap and a time limit. For a single survey on a small site it is faster and costs less than novation, and it is often all a buyer actually needs.
Copyright in drawings and reports
Under the Copyright, Designs and Patents Act 1988 the author of a drawing or a written report owns the copyright unless the contract assigns it. Standard consultant appointments rarely assign copyright. They grant the client a licence to copy and use the material for the permitted purposes of the project, and that licence is frequently conditional on fees having been paid.
That condition is the pressure point. Where a consultant has an unpaid invoice, the licence may be suspended under its own terms, which means the buyer cannot lawfully reissue the drawings for a reserved matters or discharge of conditions application. The documents are visible on the planning register and still unusable as working material.
So the buyer's due diligence question is not "do we have the reports" but "do we have a licence to use them, and is it conditional". Ask for each appointment, each licence clause, and a statement of fees outstanding. Why every planning report needs a named author and date matters here too, because an undated report with no identified author is hard to novate and harder to rely on.
Unpaid fees and practical pressure
English law gives consultants no general right to hold documents hostage, but their contracts usually give them something nearly as useful: a right to suspend performance for non-payment, a conditional copyright licence, and no obligation to issue native files at all. Where a sale is driven by the seller's cash position, assume fees are outstanding and verify it.
Native files are the detail that gets forgotten. And they are the ones nobody asks for until it is too late. A PDF of a drainage strategy is not the hydraulic model behind it. A biodiversity net gain report is not the statutory metric file. Nor is an ecology report the same thing as the raw survey data, the licence correspondence and the habitat condition sheets that sit under it. Without the underlying files, any change to the scheme means redoing the work, and in ecology it may mean waiting for the next survey season.
Illustrative example: a nine-unit site sold with a permission granted the previous autumn. The buyer took assignments of the architect's and transport consultant's appointments but not the ecologist's, and the metric file stayed with the seller. The buyer needed a minor layout change, which changed the habitat baseline, which meant a new metric. The site had been cleared, so the baseline had to be reconstructed from the earlier survey the buyer had no right to rely on. The scheme lost a season.
Warranties and information the buyer should require
A sensible buyer asks for, and a sensible seller prepares in advance:
- a schedule of every consultant appointment, with dates, scope and fee status
- copies of the appointments, not just the reports
- confirmation of professional indemnity insurance level and the period it will be maintained
- the copyright licence clause for each appointment and whether it is conditional
- native files and raw survey data, listed by consultant
- the status of any sub-consultant appointed by the lead consultant
- warranties that no claim has been notified and no work has been suspended
Limitation clauses deserve their own look. Caps are often expressed as a multiple of fee, which on a £4,000 ecology appointment may be worth very little against a scheme-level loss. Net contribution clauses reduce a consultant's share where others contributed to the loss. Neither is unusual or improper, but a buyer who assumes the reports come with meaningful recourse is usually wrong.
Drafting the sale documents and the order of work
Do the consultant conversations before exchange, not after completion. Consultants have no commercial reason to cooperate once the seller has been paid and the buyer is a stranger to them.
- List the appointments and identify which reports the buyer actually needs to use again.
- Decide, report by report, whether novation, assignment or a reliance letter fits.
- Clear outstanding fees, or agree in the contract who pays them and when.
- Circulate draft novations to each consultant alongside the heads of terms.
- Annex the signed novations and reliance letters to the sale contract as conditions of completion, so nothing depends on goodwill after the money moves.
- Transfer the assumed CIL liability before anyone breaks ground.
Where a consultant refuses to novate, the fallback is to re-commission the work in the buyer's name. Price that into the bid rather than discovering it later. Changing consultant mid-application without losing evidence covers the same problem from the other direction, and the data-handover checklist there applies equally at a land sale.
For report types where a licensed or competent professional is legally required, including Biodiversity Net Gain Assessment under the Environment Act 2021, Protected Species Survey work needing a licensed ecologist, land contamination reporting and Fire Statements under the Building Safety Act 2022 framework, re-commissioning means engaging a properly qualified author rather than reusing a draft. PlanScope's professional directory is the route to a reviewer who can take that on, and redress when a consultant's report fails at validation is the other half of the risk picture.
Browse the 66 PlanScope report types to work out which parts of an inherited evidence base you would need to rebuild if the novations fall through.
This is general guidance, not legal advice. Novation, assignment and copyright terms are matters for a solicitor on the specific documents, and for specialist technical reports qualified professional input may be required. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Does a planning permission transfer when land is sold?
Yes. Section 75 of the Town and Country Planning Act 1990 makes a permission enure for the benefit of the land and all persons interested in it, so the buyer takes the consent and its conditions without any transfer document. Section 106 obligations bind successors in title under section 106(3), so those pass too.
What is the difference between novation and assignment?
Assignment transfers the benefit of the appointment, so the buyer can enforce it, while the seller keeps the obligations including the fees. Novation is a three-party agreement replacing the seller with the buyer entirely, so the consultant owes its duties to the buyer. Consultants must agree to a novation and often negotiate terms first.
Can I just download the reports from the planning register?
You can read them, because a planning application is a public document. Reading is not reliance. Without a licence you cannot lawfully reissue the drawings for a reserved matters or discharge of conditions application, and without novation or a reliance letter you have no claim against the author if the work is wrong.
Who owns copyright in planning drawings and reports?
Under the Copyright, Designs and Patents Act 1988 the author owns it unless the appointment assigns it, which is rare. Appointments usually grant the client a licence for the project, often conditional on fees having been paid. Check the licence clause in each appointment and confirm whether any invoices are outstanding.
What happens to Community Infrastructure Levy liability?
Liability is procedural. Where the seller has assumed liability, it can be transferred to the buyer using the council's transfer of assumed liability form, but only before development begins on site. If the transfer is missed and work starts, the person who assumed liability remains liable for the charge.
Is a reliance letter enough instead of novating?
Often, on smaller sites. A reliance letter or duty of care deed gives the buyer a direct right to rely on a named report, normally with a liability cap and a time limit, and leaves the original appointment untouched. It is quicker and costs less than novation, but it gives no right to instruct further work.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.