Received an 'Alleged Breach of Condition' from Council Planning Control - Help!

EssexExile

That would only be relevant if the planning permission for each acre was conditional upon buildings being built on each other acre.

Doozergirl

If i

katipip wrote: »

Using the councils logic perhaps they would like to respond to this possible situation.

Supposing I own 50 acres of land and apply for planning permission to build 2 houses on every acre. Planning Permission is granted.

I then change my mind and sell off the 50 acres to 50 different people. Each person gets 1 acre.

49 of the people choose to use their newly acquired land land for pasture whilst 1 person uses the planning permission and builds his 2 houses.

Does that force the other 49 people to build 2 houses each just because 1 owner has done so???

No, surely not.

It's a bit late on a Saturday night to try and quantify; I cannot view full pics on my phone to explain the required layout, but can I suggest that if you have absolutely no planning experience, that you refrain from bolstering the OP's misinformed opinions. It isn't fair on them. Applying for permission and not using it is very different to conditions being applied to make a development conform to planning legislation.

If 49 people paying building land prices for pasture isn't ridiculous enough, or the fabulous idea of custom build not actually being used in this country; if there are planning conditions set on some of those 49 other plots of land that make 1 habitable, then those affected will be required to carry out the work to make that one acceptable. It may be that a passable road with adequate turning is required for fire engines to access. You bring hypothetical situations that have no comparison to the OP anyway.

For the OP, all houses will be required to have a certain number of parking spaces when a new build app goes through. If you build within the curtilage of an existing property, it has to be demonstrated that each property within that app mets current legislation - which may well involve some modification work to the host property. The condition set is that no one should live in the new property until x,y,z which means that even if work is carried out as planned on their land, if the OPs isn't, they are both in breach, certainly not just the new neighbour.

The planners won't turf the OP out of their house but they can enforce that a certain number of spaces or particular safe access is created. It may well be that there is a compromise that the first applicant hadn't considered, but it involves grown up conversation with the planner and a bit of respect for legislation- not a decision to only use one letter as the basis for arguing planning law against the local authority.

The purchasing solicitor needs to be referred back to. Something has been missed, but it isn't the planners problem.

If you want to draw from solely the first letter received, then I can understand some impudence, but that letter letter does not encompass all of planning law.

Doozergirl

the_r_sole wrote: »

This a planning condition, a planning obligation is something completely different and nothing to do with this matter

Whilst a planning approval is not a planning obligation, I would argue all day long that a planning condition is definitely a planning obligation once the approved building work goes ahead.

A subsequent application could alter the exact layout, but the obligation to provide x parking and/or adequate access will remain.

Doozergirl

moneyistooshorttomention wrote: »

I would be wondering whether to send the Council a letter, laying out quite clearly all the reasons why this was nothing to do with my house, and stating that, if they persist with trying to say that it is =

- then I would obviously consult a solicitor specialising in such matters and then send them a letter with the solicitor's verdict on it (proving I'm right) and a bill for them to repay me for my solicitors costs.

In other words the gist of the letter would be a (more politely/legally) phrased comment to effect of "Stop hassling me like this. You ARE in the wrong. If you persist then I will make YOU pay the costs of my proving you wrong."

Another possible alternative being that I am wondering whether you have any decent standard councillors in your area? Councillors can vary and I would probably not think like that these days (as some of the ones hereabouts are dire) - but I would have done so/have done so before in a previous area.

Your first three paragraphs are useless. Expensive solicitors and shirty letters with no basis in reality.

A local councillor may be useful, however, but approached from the angle of homeowners that have been wrong-done by the previous owner, in search of a satisfactory conclusion for everyone.

MisterBaxter

katipip wrote: »

Using the councils logic perhaps they would like to respond to this possible situation.

Supposing I own 50 acres of land and apply for planning permission to build 2 houses on every acre. Planning Permission is granted.

I then change my mind and sell off the 50 acres to 50 different people. Each person gets 1 acre.

49 of the people choose to use their newly acquired land land for pasture whilst 1 person uses the planning permission and builds his 2 houses.

Does that force the other 49 people to build 2 houses each just because 1 owner has done so???

No, surely not.

Whilst perhaps a bit extreme that sort of scenario happens quite often; a large developer buys a site, obtains planning consent and then sells off parts to other developers usually because they can't finance the whole build. Having consent on the whole site can improve site values, it also helps to protect the original developers interests.

If the planning consent is enacted and works commence then the planning authority would expect any/all of the conditions imposed on the consent to be complied with or amended through further application. If these conditions included that all of the properties must be built then that is what should happen [whether such a condition would ever be imposed is difficult to answer].

In the case of the OP it was a very small development with conditions that on the face of it weren't onerous at the time; the problem seems to have come about because the property changed hands part way through the development without the buyer(s) knowing about the outstanding planning conditions. My own view on this is that it should have been picked up during the conveyancing process.

Doozergirl is right in that conditions have to be complied with and they pass from owner to owner. Whether or not these conditions could be removed or altered to something more palatable to the OP is a matter to be discussed with the planning authority involved.

The planning process is very procedural and those involved generally know their stuff, the letter sent to the OP is therefore more likely than not to be factually correct in it's application of the planning requirements. It's best to work with them than dig in and argue.

System

Doozergirl wrote: »

Whilst a planning approval is not a planning obligation, I would argue all day long that a planning condition is definitely a planning obligation once the approved building work goes ahead.

A subsequent application could alter the exact layout, but the obligation to provide x parking and/or adequate access will remain.

A planning obligation is a very specific agreement which requires a legal agreement to be drawn up with an obligation on a developer - its normally just money to be paid, but can sometimes be that a play park or shop is included in a development, they are normally implemented when a proposal deviates from local policy and is a tradeoff for the council.
A planning condition applied to an approval is a condition to ensure compliance with planning policy.

The condition is applied to the permission so logically the person carrying out the works on the permission has to comply with the conditions otherwise the works are non compliant.
It really seems like a huge fault in conveyancing if there was a requirement for the op to provide a new access for someone else's new house to be built in the future...

Op I know a great planning consultant if you want to pm me I can provide details, he would be able to clarify your exact situation... He trains local authority enforcement officers!

chappers

The bottom line is that the planning obligations lie with the land and not the owners, however the owners are the ones who have to carry out those obligations.
Where this one becomes complicated is that the development as a whole was originally based upon a single piece of land, which has subsequently been split into two ownerships.
The problem here is that whilst both owners have obligations they don't have the obligation to carry work out on each others land.
There are two people largely at fault here. The person that developed the land next to the OP, they shouldn't have occupied until the works were carried out in full to the satisfaction of the planners, and as there could be no such restrictions on the existing dwelling, I would have expected that, the costs should have fallen to the developer, as technically they were the ones who couldn't occupy without the planning obligations being discharged, and without their dwelling being built there was no obligation for the OPs house to be provided with a driveway.
But mostly I would lay the blame for the OPs problem firmly at the door of their solicitor, who should have ensured that all planning obligations had been discharged before allowing them to complete on the purchase.
This is a complicated matter and I would be trying to resolve this via negotiation with both the neighbours and the planners.
What sort of enforcement are they taking against the neighbours.
I would engage a planning consultant who may be able to negotiate a compromise with the planners as a first avenue.
Don't threaten the planners though, they are technically correct in what they say.

MisterBaxter

As I've said in a previous post, before you go off and appoint a Planning Consultant I strongly suggest that you have a face to face meeting with the planners. Anything they put in writing to you will always be very technical in nature and largely unhelpful; this is done intentionally so that they don't introduce any ambiguities that may jeopardise their position in the event of later enforcement. In a face to face meeting they may be more willing to make suggestions or give ideas on the understanding that they are off the record and that there are no guarantees that they will ultimately be acceptable. If nothing comes of the meeting you are in no worse a position and have only wasted an hour or so of your time; at least it won't have cost you anything.

Appointing a decent Planning Consultant isn't a cheap option; they can run into the hundreds of pounds an hour plus expenses and ultimately there are no guarantees that they will be able to come up with a viable solution to the problem that will be acceptable to the planners. You need to understand that you could spend several thousand pounds and be in the exact same position that you are in now.

Whether or not you will be able to mitigate some or all of your costs by making a claim against the person/firm that failed to pick up these issues during the conveyancing process is another matter and you would have to seek specific legal advice on that; obviously from a different solicitor/firm that did the conveyancing in the first place; again this has the potential for being another expense if you can't make a claim.

Finally; have you discussed any of this with your buildings/contents insurers as many policies include an allowance for legal/professional fees or access to legal advice which you may find useful.

planning_officer

Some great advice above, but also some poor advice (sorry!). I speak as an experienced planner and an ex-enforcement officer. Firstly, a planning obligation is a legal agreement, not a condition.


Secondly, to cut a long story short, the Council are entirely correct and this is enforceable against the current occupier (the OP). He has control over the land (the bit where the new drive should go). Planning permission (and requirement to comply with conditions) runs with the land. The fault here lies with the solicitor who did the searches when you bought the house - they should have found this out and in my view this is their professional negligence.



A way forward would be to meet with the Council and they may be amenable to alternative access arrangements - maybe a smaller drive, in a slightly different position, using a different or new access, etc. You would need to apply for planning permission (to vary the original condition) but the planners should be amenable to helping in any way they can, as they will know it's not your fault the condition has not been complied with. It is also even more pressing for the occupiers of the new house, as they shouldn't be living there with the condition not complied with!

Some individual responses:

katipip wrote: »

I think the council are trying it on.

By their own admission:-

"Section 187 of the Town and Country Planning Act 1990 states that the ‘the local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a “breach of condition notice”) on— .
(a)any person who is carrying out or has carried out the development; or .
(b)any person having control of the land,’

I understand category B to refer to the person having control of the land that is actually being built on.

You do not fit into either category A or B so, surely the issue has nothing to do with you.

The Council are definitely not trying it on here - the OP falls under (b) as he has control over the land, i.e. the land required for the new driveway. This is perfectly enforceable.

moneyistooshorttomention wrote: »

I would be wondering whether to send the Council a letter, laying out quite clearly all the reasons why this was nothing to do with my house, and stating that, if they persist with trying to say that it is =

- then I would obviously consult a solicitor specialising in such matters and then send them a letter with the solicitor's verdict on it (proving I'm right) and a bill for them to repay me for my solicitors costs.

In other words the gist of the letter would be a (more politely/legally) phrased comment to effect of "Stop hassling me like this. You ARE in the wrong. If you persist then I will make YOU pay the costs of my proving you wrong.

With all due respect, this would be a waste of time for everyone - as the Council are in fact correct here.

katipip wrote: »

Using the councils logic perhaps they would like to respond to this possible situation.

Supposing I own 50 acres of land and apply for planning permission to build 2 houses on every acre. Planning Permission is granted.

I then change my mind and sell off the 50 acres to 50 different people. Each person gets 1 acre.

49 of the people choose to use their newly acquired land land for pasture whilst 1 person uses the planning permission and builds his 2 houses.

Does that force the other 49 people to build 2 houses each just because 1 owner has done so???

No, surely not.

There is, unfortunately, no logic to this argument at all. Like someone else says, if a condition requires all plots to be built concurrently, then yes - enforcement action could be taken. But if each plot is separate and is not conditional on all the other plots being built, then of course there is no obligation for the other plots to be built on. Conversely, building on one plot means the planning permission has been implemented and there is no time limit for building on all the other plots!

Furts

planning_officer wrote: »

Some great advice above, but also some poor advice (sorry!). I speak as an experienced planner and an ex-enforcement officer. Firstly, a planning obligation is a legal agreement, not a condition.


Secondly, to cut a long story short, the Council are entirely correct and this is enforceable against the current occupier (the OP). He has control over the land (the bit where the new drive should go). Planning permission (and requirement to comply with conditions) runs with the land. The fault here lies with the solicitor who did the searches when you bought the house - they should have found this out and in my view this is their professional negligence.



A way forward would be to meet with the Council and they may be amenable to alternative access arrangements - maybe a smaller drive, in a slightly different position, using a different or new access, etc. You would need to apply for planning permission (to vary the original condition) but the planners should be amenable to helping in any way they can, as they will know it's not your fault the condition has not been complied with. It is also even more pressing for the occupiers of the new house, as they shouldn't be living there with the condition not complied with!

Some individual responses:
The Council are definitely not trying it on here - the OP falls under (b) as he has control over the land, i.e. the land required for the new driveway. This is perfectly enforceable.


With all due respect, this would be a waste of time for everyone - as the Council are in fact correct here.


There is, unfortunately, no logic to this argument at all. Like someone else says, if a condition requires all plots to be built concurrently, then yes - enforcement action could be taken. But if each plot is separate and is not conditional on all the other plots being built, then of course there is no obligation for the other plots to be built on. Conversely, building on one plot means the planning permission has been implemented and there is no time limit for building on all the other plots!

The Council may be amenable and it does appear that professional negligence has occurred. But the Council might adopt the following mindset, which could be deemed a default setting pending any further information coming to light:

Mr Smith is a known rogue who property develops and speculates. He bought the property and then asset stripped the land by selling it to his mate Mr Jones. Mr Jones is also a known rogue property developer. Along came OP and said "I will buy the original house. I can see that it has lost its garden, I can see there is nowhere to park my car, nor any parking for visitors. I will not ask any questions, I will not give a heads up to my conveyancing solicitor, and I will take my chances on future enforcement."

Equally, the principle of property sale is "Buyer Beware" so the Council will assume that OP was aware of the Planning requirements.

With this scenario in mind OP would be wise to tread carefully in communication with the Council.