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    • slightlychilled
    • By slightlychilled 15th May 17, 6:21 PM
    • 41Posts
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    slightlychilled
    Missing planning permission
    • #1
    • 15th May 17, 6:21 PM
    Missing planning permission 15th May 17 at 6:21 PM
    It has come to light that the property I am in the middle of purchasing, has no planning permission for the detached garage on the grounds. The current seller did not build it. I am hearing mutterings of "indemnity insurance" that the vendor can take to protect me.I'm not sure how far reaching this is and my solicitor is frankly rubbish but I can't change her. If I was to ever sell the property would this "indemnity insurance" protect my buyer ? I don't want this forever hanging over my head.
    I personally am tempted to accept the indemnity insurance as a temporary measure but request the seller obtains retrospective planning permission. Is this a reasonable demand or have I misunderstood the situation? Could I ask for a reduction in sale price ?
Page 3
    • Surrey_EA
    • By Surrey_EA 17th May 17, 5:34 PM
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    Surrey_EA
    Going back to my original questions, I would still like to know whether an indemnity policy is for the life of the garage or just for me as a buyer ?
    Originally posted by slightlychilled
    I am not an expert on the subject, but I understand that the policies are transferable when you come to sell. However, depending on the solicitor and exactly what is being covered, if the value of the property has increased significantly by the time you come to sell it may be the case that additional cover is required.

    In my experience it's pretty rare today for a sale to go through that doesn't need an indemnity policy of one sort or another.
    • davidmcn
    • By davidmcn 17th May 17, 5:43 PM
    • 5,282 Posts
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    davidmcn
    I would still like to know whether an indemnity policy is for the life of the garage or just for me as a buyer ?
    Originally posted by slightlychilled
    The former (I did answer this back at post #10!).
    • Doozergirl
    • By Doozergirl 17th May 17, 6:39 PM
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    Doozergirl
    Please tell me there is a distinction between ignoring buliding regulations and crossing a grey line in permitted development.
    Going back to my original questions, I would still like to know whether an indemnity policy is for the life of the garage or just for me as a buyer ?
    Originally posted by slightlychilled
    Yes, they are totally different and garages don't need Building Regulations Approval either!

    The last time I purchased an indemnity policy, I'm sure I could choose whether it covered just our ownership or subsequents as well.
    Everything that is supposed to be in heaven is already here on earth.
    • EachPenny
    • By EachPenny 17th May 17, 6:39 PM
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    EachPenny
    Please tell me there is a distinction between ignoring buliding regulations and crossing a grey line in permitted development.
    Originally posted by slightlychilled
    In terms of how future buyers will look at it, there's not a great deal of difference.

    There's also no 'grey line' with permitted development - it is either permitted or not - and permitted development might not be relevant in your case.

    What you've been advised by many posters on here could be called 'getting away with it' development. If the planning authority don't take action within a certain length of time then they can't take planning enforcement action in most circumstances.

    But as you haven't established for certain:
    a) Whether the garage is permitted development
    b) Whether the Council can or cannot take planning enforcement action
    c) Whether the Council has any other course of action they could take
    and
    d) The legal implications of the covenant

    -then the best advice you could get right now is to buy as much insurance as you can, or else be prepared to deal with whatever problems get uncovered down the line. Hopefully this is what your solicitor will be telling you before things go too far.
    "In the future, everyone will be rich for 15 minutes"
    • Doozergirl
    • By Doozergirl 17th May 17, 6:47 PM
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    Doozergirl
    In terms of how future buyers will look at it, there's not a great deal of difference.

    There's also no 'grey line' with permitted development - it is either permitted or not - and permitted development might not be relevant in your case.

    What you've been advised by many posters on here could be called 'getting away with it' development. If the planning authority don't take action within a certain length of time then they can't take planning enforcement action in most circumstances.

    But as you haven't established for certain:
    a) Whether the garage is permitted development
    b) Whether the Council can or cannot take planning enforcement action
    c) Whether the Council has any other course of action they could take
    and
    d) The legal implications of the covenant

    -then the best advice you could get right now is to buy as much insurance as you can, or else be prepared to deal with whatever problems get uncovered down the line. Hopefully this is what your solicitor will be telling you before things go too far.
    Originally posted by EachPenny
    .


    That isn't the best advice. It defies moneysaving principles when the advice is actually backside covering by solicitors who don't know the answers to this themselves, paid for by their clients. Exacerbated by potential insurers conveniently preventing people from asking the most basic of questions to planning officers.

    I'm hoping the OP took the advice of looking at the planning portal to establish PD, which is what the majority of garages will fall under.

    "Getting away with it" is also lawful and doesn't require any insurance.

    The covenant is a totally separate issue covered by a different policy. No one here knows what the wording of the covenant is, even, so the advice to buy as much insurance as possible isn't best, it's knee jerk.
    Everything that is supposed to be in heaven is already here on earth.
    • Doozergirl
    • By Doozergirl 17th May 17, 6:51 PM
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    Doozergirl
    I would be happy to give an educated opinion on the age of the garage and/or whether it is PD, given a door number and postcode via PM.

    It doesn't provide insurance, but I would find it less frustrating than all this flapping about of 40 odd posta and no-one knowing anything.
    Everything that is supposed to be in heaven is already here on earth.
    • davidmcn
    • By davidmcn 17th May 17, 6:55 PM
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    davidmcn
    the advice to buy as much insurance as possible isn't best, it's knee jerk.
    Originally posted by Doozergirl
    However, getting somebody else (i.e. the seller) to buy as much insurance as possible for your benefit is good money-saving advice
    • EachPenny
    • By EachPenny 17th May 17, 6:56 PM
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    EachPenny
    I would be happy to give an educated opinion on the age of the garage and/or whether it is PD, given a door number and postcode via PM.

    It doesn't provide insurance, but I would find it less frustrating than all this flapping about of 40 odd posta and no-one knowing anything.
    Originally posted by Doozergirl
    Finally

    The OP also needs advice on whether Building Regulations approval was needed, there is not a blanket exemption on garages.
    "In the future, everyone will be rich for 15 minutes"
    • parking_question_chap
    • By parking_question_chap 17th May 17, 6:59 PM
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    parking_question_chap
    How old is the garage?
    • slightlychilled
    • By slightlychilled 17th May 17, 7:22 PM
    • 41 Posts
    • 13 Thanks
    slightlychilled
    "The covenant is a totally separate issue covered by a different policy."

    What would that be ?
    Other posters have indicated that permitted development supercedes covenant.
    • Doozergirl
    • By Doozergirl 17th May 17, 7:35 PM
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    Doozergirl
    "The covenant is a totally separate issue covered by a different policy."

    What would that be ?
    Other posters have indicated that permitted development supercedes covenant.
    Originally posted by slightlychilled
    We think we get to a point and then it all starts again. It was raised again by someone else and lumped in together with the planning requirements.

    I don't know what your covenant says. If it says what you have paraphrased then of course, you cannot obtain PP for something that doesn't need it - if it falls under PD.

    I'm offering to look at the house, its planning requirements and whether the garage is PD. It cannot constitute professional advice but it will answer a lot of questions that keep circling this thread like seagulls
    Everything that is supposed to be in heaven is already here on earth.
    • EachPenny
    • By EachPenny 17th May 17, 7:48 PM
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    EachPenny
    Other posters have indicated that permitted development supercedes covenant.
    Originally posted by slightlychilled
    I think that was just your interpretation of something Doozergirl said.

    Planning and covenants are normally two separate issues, but in your case you have a covenant that apparently says you have to apply for planning permission.

    Doozergirl was saying that you could interpret that as meaning you have to apply, if you have to apply. An alternative view, perhaps the one the Council's solicitor would take, is that you have to apply even if it is PD.

    A Planning Authority has a legal obligation to register applications made to it. In most cases it then has an obligation to make a determination on the application. Even if a proposal is PD, it doesn't stop someone making an application and seeking a determination. It is rare, but there are specific circumstances where someone might want to go down that route.

    It wouldn't be unreasonable for a covenant to seek to ensure a future owner obtains full planning consent for development, even if normally covered by PD. It is a situation not unlike an article 4 direction, but applied to a specific property or group of properties rather than an area-based restriction.

    Without seeing the whole text of the covenant(s) for the property it is impossible for anyone to give an opinion on what they mean - even then you will probably get two or more equally valid opinions.

    The problem with this thread is people have been giving you advice on the basis you are the owner and need help to prove that everything is ok before you sell. This is backside about face - you need advice on the basis you are the buyer and need to find every possible angle which could be used to cause you a problem in the future. And that means looking at all the documents in detail and knowing the exact history of the building which may or may not exist with planning (and building regulations) consent.
    "In the future, everyone will be rich for 15 minutes"
    • slightlychilled
    • By slightlychilled 17th May 17, 8:02 PM
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    slightlychilled
    Posters have most defintely indicated that PD supercedes covenant. Gosh this gets just more and more confusing. The covenant states:
    "Not to alter or demolish or make any additions whatsoever to the premises or outbuildings or to erect any further outbuildings or boundary walls or fences without previously submitting plans showing such alterations additions or erections and obtaining the consent of the Council in writing thereto"
    I had no idea that my post titled "Planning permission missing" could be perceived as so ambiguous.
    Last edited by slightlychilled; 17-05-2017 at 8:07 PM.
    • n217970
    • By n217970 17th May 17, 8:11 PM
    • 77 Posts
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    n217970
    OK so essentially this is a similar convenant I have on my home on a modernish estate but my covenant falls with the developer rfather then the council. I have a conservatory that fell under permitted develeopment rules so it does not have any planning permission - it didnt need any.

    But I have a letter from the estate developers that says they give permission for the conservatory to be built. The only difference here is that instead of getting permission from the developer you need permission from the council. It is a seperate issue to planning permission.

    Edit: For what its worth I used to live in an ex-council house that had a covenant against having a sky dish on the front of the house imposed by the council. Every house on one side of the street had a dish on the front.
    Last edited by n217970; 17-05-2017 at 8:14 PM.
    • EachPenny
    • By EachPenny 17th May 17, 8:12 PM
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    • 987 Thanks
    EachPenny
    Posters have most defintely indicated that PD supercedes covenant. Gosh this gets just more and more confusing. The covenant states:
    "Not to alter or demolish or make any additions whatsoever to the premises or outbuildings or to erect any further outbuildings or boundary walls or fences without previously submitting plans showing such alterations additions or erections and obtaining the consent of the Council in writing thereto"
    I had no idea that my post titled "Planning permission missing" could be perceived as so ambiguous.
    Originally posted by slightlychilled
    In which case the garage is almost certainly unlawfully constructed, unless the previous owner submitted plans to the Council and obtained written consent - PD or not.

    The way the covenant is worded may also be interpreted to mean the Council itself, not necessarily exclusively in its role as Planning Authority.

    You need to discuss this with your solicitor - and get a new one if necessary.
    "In the future, everyone will be rich for 15 minutes"
    • Doozergirl
    • By Doozergirl 17th May 17, 8:30 PM
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    Doozergirl
    Posters have most defintely indicated that PD supercedes covenant. Gosh this gets just more and more confusing. The covenent states:
    "Not to alter or demolish or make any additions whatsoever to the premises or outbuildings or to erect any further outbuildings or boundary walls or fences without previously submitting plans showing such alterations additions or erections and obtaing the consent of the Council in writing thereto"
    I had no idea that my post titled "Planning permission missing" could be perceived as so ambiguous.
    Originally posted by slightlychilled
    Sometimes we need some additional help from the OP to be able to give a certain answer.

    If that is the covenant then PD is a form of PP, as I said before.

    Even without the paperwork saying it is PD, the covenant isn't enforceable. What would be the benefit to the owner of the covenant? You go to the council, apply for permsission for something that doesn't need it (either because it is too old or PD anyway). They write back and say it is lawful. So what?

    If the vendor is prepared to pay for these indemnities then fine, but as a vendor I would push back.

    You are making a bit of a mountain of a molehill. They are stuck between a rock and a hard place. You want an indemnity to cover things that won't happen just in case your buyers are as anxious as you are. It's unlikely, but some people don't like indemnities and will panic about that or some other random point.

    At some point people have to educate themselves. The only way to make this go away is to establish from the council whether it is lawful development, which it is almost certainly going to be. But then that invalidates an indemnity policy 'just in case'.

    And whilst we go around in circles, we just come back to the point that there is no ultimate benefit to the owner of the covenant and the providers of indemnity policies sell snake oil and create uncertaintity that requires insuring when there was nothing to insure. You are only insuring the uncertaintity created by the indemnity providers.

    What a mess.
    Everything that is supposed to be in heaven is already here on earth.
    • Doozergirl
    • By Doozergirl 17th May 17, 8:39 PM
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    Doozergirl
    In which case the garage is almost certainly unlawfully constructed, unless the previous owner submitted plans to the Council and obtained written consent - PD or not.

    The way the covenant is worded may also be interpreted to mean the Council itself, not necessarily exclusively in its role as Planning Authority.

    You need to discuss this with your solicitor - and get a new one if necessary.
    Originally posted by EachPenny
    Okay, I see where you're coming from.

    Now another question. Is the "Council" the owner of the covenant? Are they the transferer named on the original deeds? This is akin to leaseholder consent for alterations. There is no mention of 'planning permission'.

    Permission from the landowner rather than permission from the planning authority. Only relevant if they were the landowner.

    And that is definitely where the covenant becomes a separate issue covered by a separate indemnity policy to any planning issue.
    Last edited by Doozergirl; 17-05-2017 at 8:43 PM.
    Everything that is supposed to be in heaven is already here on earth.
    • slightlychilled
    • By slightlychilled 17th May 17, 9:03 PM
    • 41 Posts
    • 13 Thanks
    slightlychilled
    The local council is the owner of the covenant and was the original landowner.
    Can we now have a definitive answer ? please ?
    • EachPenny
    • By EachPenny 17th May 17, 9:25 PM
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    EachPenny
    Now another question. Is the "Council" the owner of the covenant? Are they the transferer named on the original deeds? This is akin to leaseholder consent for alterations. There is no mention of 'planning permission'.
    Originally posted by Doozergirl
    It is the issue I raised in the penultimate para of post #21 - even if the planning issue is resolved it doesn't mean the Council cannot take any action at all. Whether or not they take action is also unpredictable - for example it is more likely if the OP's prospective new neighbour happens to be friends with an influential Councillor and the OP's dog/kids/car/general attitude is something that grates with their new neighbour.

    The thing we still don't know is how "council" is defined in the covenant. It might just be the corporate body, but the term could be defined as planning authority as well or instead of. The devil is in the detail, which is why I was (perhaps slightly unfairly) criticising people offering relatively definite advice that everything was 100% ok in the lack of firm evidence. In planning and property law precise wording is absolutely key and tiny differences in wording make all the difference. As an example, read this sentence with and then without the highlighted text "Thanks to all who contributed useful advice". A couple of words here and there make all the difference.

    Can we now have a definitive answer ? please ?
    Originally posted by slightlychilled
    Sorry, I have to say it again. You need to speak to your solicitor about this. We can all offer you advice based on what you tell us and what we know. But you are dealing with an extremely complex area of law and solicitors are the people who are qualified and indemnified to give the kind of advice you need.

    I can see a strategy for how you and/or your vendor could get round the problem, but I don't have the qualification, indemnity insurance nor billing capability to go there. If your solicitor is capable then they will be able to give you the answer quite easily, if not then you need a new solicitor. A good start would be to print off this thread and ask your solicitor to read the first page.
    "In the future, everyone will be rich for 15 minutes"
    • Doozergirl
    • By Doozergirl 17th May 17, 9:35 PM
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    Doozergirl
    The local council is the owner of the covenant and was the original landowner.
    Can we now have a definitive answer ? please ?
    Originally posted by slightlychilled
    Not really. But my opinion on the current info is that you need an indemnity policy for that as I think it relates to landowner permissions. In all honesty, the deeds will probably provide more surrounding info.

    It doesn't make sense to me for it to be specifically planning permission related as there's no gain. The law of the land involves getting relevant planning permissions, why put common sense in deeds? They'd be miles long.

    We're trying to help but you don't know what info to provide and we're dragging it out of you! A solicitor should certainly know better than me how to deal with covenants as that's what they're trained in.

    I should know planning and building control better than a solicitor does.
    Everything that is supposed to be in heaven is already here on earth.
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