New build flat balcony does not match the original plans - advise needed

Llamaman_2

I recently had an offer for a new build flat accepted and currently undergoing conveyencing. The flat is in a small development and the developer is a small local firm. The development has been finished recently and some of the flats (including mine) weren't sold off-plan.

The flat I'm buying is on the top floor and has a large balcony. However I have since looked at the council's planning portal which contains the original floor plan layout which the developer submitted during the planning phase. The original plans show that the top floor's balcony was partially (around 60% or so) covered in 'Green Roof' (i.e. an area covered in a layer of vegetation). There is also planning condition attached stating "The biodiverse (green/brown) roof shall not be used as an amenity or sitting out space of any kind whatsoever and shall only be used in the case of essential maintenance or repair, or escape in case of emergency."

It is clear that the developer has decided to increase the balcony space for my flat and therefore forgone the green roof. I cannot find amendments submitted to the council which have removed this green roof from the plan. However there is no condition on the planning permission to say 'X% of the roof must be green roof' so maybe they are entitled to?

My questions are:

• Are these types modifications to the original planning generally tolerated by councils? I am worried that post-completion, someone could complain and the balcony will need to be made a 'green roof' again, therefore reducing the size of the balcony (and therefore possibly value of the flat?)
  
• Who would be liable if the green roof condition gets enforced? Me or the original developer?

I am consulting with my conveyencer and seller's solicitor about this but it would be good to hear some MSE opinions as well.

princeofpounds

I should imagine that the builder - assuming they are not going to install it later - just left it out to save money and hopes that no-one will care. 

Modifications are sometimes permitted by councils. 

The council can complain post-completion. My understanding is that the problem would then rest with you, although you may in turn have recourse to the developer if they certified to you that they were fully in compliance with planning. 

You did the right thing by informing your solicitor, who should be able to investigate. It will probably get sorted out one way or another. 

davidmcn

"Non-material variations" (ie things too minor to require a separate application) are commonplace, it's possible they'll get round to making one even if it's not on the planning site. I would imagine the biodiverse roof is required by the planners to tick a box, rather than being something completely optional.
Your contract will probably require the developers to build in accordance with planning (though will permit minor variations from spec). Generally though any planning enforcement is your (and the other owners') problem in the future.

bbat

Does it mention this roof on the planning conditions? It might say something about it specifically, or refer to the mitigation set out in an ecology report and that the applicant has to follow that? If so they probably can't remove it without applying for an amendment. 

seradane

bbat said:

Does it mention this roof on the planning conditions? It might say something about it specifically, or refer to the mitigation set out in an ecology report and that the applicant has to follow that? If so they probably can't remove it without applying for an amendment. 

Some people don't bother reading the original post, do they?

bbat

seradane said:

bbat said:

Does it mention this roof on the planning conditions? It might say something about it specifically, or refer to the mitigation set out in an ecology report and that the applicant has to follow that? If so they probably can't remove it without applying for an amendment. 

Some people don't bother reading the original post, do they?

Well I did, but I guess my question wasnt clear. What I was trying to ask was does the condition actually say it has to be created, rather than just how it should be used. 

princeofpounds

Should have mentioned - if this green roof area is not demised to your flat, then it won't end up being your problem specifically, but rather that of the freehold.

seradane

bbat said:

seradane said:

bbat said:

Does it mention this roof on the planning conditions? It might say something about it specifically, or refer to the mitigation set out in an ecology report and that the applicant has to follow that? If so they probably can't remove it without applying for an amendment. 

Some people don't bother reading the original post, do they?

Well I did, but I guess my question wasnt clear. What I was trying to ask was does the condition actually say it has to be created, rather than just how it should be used. 

Technically, nothing in a planning permission has to be created. In fact you can sometimes get around planning conditions by just failing to complete the build - you are perfectly entitled to "run out of money" and "intend to complete it at a later date", as there's no time limit on completing the works. (Though whether that would wash with a developer that's since sold all the flats on, I don't know.)

However, some councils are getting around this - I saw a permission recently that had a condition that the property was not to be occupied until the existing outbuildings had been demolished - presumably to prevent the owner from building the new outbuildings as per the permission, and leaving the old ones remaining, and going, oh yes, I will, I just haven't finished the works yet, and then continuing to use them forever.

Llamaman_2

bbat said:

Does it mention this roof on the planning conditions? It might say something about it specifically, or refer to the mitigation set out in an ecology report and that the applicant has to follow that? If so they probably can't remove it without applying for an amendment. 

This is the full text of the condition from the planning permission (this is the only condition referencing the green roof). So yes it does appear to reference an ecology report and does mention the green roof by name. There living wall and other planters mentioned are there in other parts of the development, but the green roof is not.

Before any above grade work hereby authorised begins, details (including a specification and maintenance plan) of the biodiverse (green/brown) roof, living wall and planters to be used in the carrying out of this permission shall be submitted to and approved in writing by the Local Planning Authority. The development shall

be carried out strictly in accordance with any such approval given, and the biodiverse (green/brown) roof, living wall and planters shall be retained and maintained for the duration of the use. The biodiverse (green/brown) roof shall not be used as an amenity or sitting out space of any kind whatsoever and shall only be used in the case of essential maintenance or repair, or escape in case of emergency.

Reason:

To ensure the proposed development will preserve and enhance the visual amenities of the locality and is designed for the maximum benefit of local biodiversity, in addition to the attenuation of surface water runoff, it in accordance with The National Planning Policy Framework 2012, Strategic Policy 11 Open spaces and wildlife,

Strategic Policy 12 Design and Conservation and Strategic Policy 13 High environmental standards of The Core Strategy 2011 and Saved Policies 3.2 Protection of amenity; 3.12 Quality in Design, 3.13 Urban design and 3.28 Biodiversity of the Southwark Plan 2007.

princeofpounds said:

Should have mentioned - if this green roof area is not demised to your flat, then it won't end up being your problem specifically, but rather that of the freehold.

Unfortunately that is the problem - the area is demised to me.

There is a large area outside of the top floor flat. Looking at the original floor plans in the approved planning permission, around 40% or so of this area was supposed to be the flat's balcony, and 60% green roof. Instead the developer has decked over the whole area and it now one large balcony, no sign of a green roof. They've even added an extra patio door which was not originally in the plan - it opens up onto the area which was supposed to be the green roof.

seradane

Llamaman_2 said:

 and the biodiverse (green/brown) roof, living wall and planters shall be retained and maintained for the duration of the use. 

Okay - this wording means they definitely have to maintain the green roof so cannot use the development without it.

So - they presumably have commenced "above grade" work. This planning condition requires them to submit details of this green roof before commencing, if they have done so this should also be able to be found on the council's planning application search. Can you find any such thing?

If not, and it seems in any case, judging from the fact they've paved over and demised you the entire deck, they appear tp be breaching this condition. This document goes through the methods the council has to enforce conditions:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7709/319295.pdf

mrschaucer

To be honest I can't see anyone buying that property without their solicitor enquiring of the council whether approval of the new layout of the green/brown roof has been signed off.