Missing planning permission

EachPenny

slightlychilled wrote: »

Other posters have indicated that permitted development supercedes covenant.

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.

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.

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.

EachPenny

slightlychilled wrote: »

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.

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.

Doozergirl

slightlychilled wrote: »

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.

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.

Doozergirl

EachPenny wrote: »

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.

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.

slightlychilled

The local council is the owner of the covenant and was the original landowner.
Can we now have a definitive answer ? please ?

EachPenny

Doozergirl wrote: »

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'.

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.

slightlychilled wrote: »

Can we now have a definitive answer ? please ?

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.

Doozergirl

slightlychilled wrote: »

The local council is the owner of the covenant and was the original landowner.
Can we now have a definitive answer ? please ?

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.

davidmcn

We'd need to see the rest of the deed to be sure (in particular, how it defines "Council"), but I think we are almost certainly talking about the council wearing its property-owner hat, rather than its planning authority hat. So on the face of it their consent is needed to anything (including things which happen to be permitted development under planning law). They could be asked for retrospective consent (probably a formality, but may delay things). Or it could be covered with an indemnity policy. Which is probably the minimum you should be asking for, so you can wave it at awkward buyers/lenders in the future.

Whether it should have had planning permission is a separate question.