18mo after moving into new build, told our garden fence temporary, will now lose 31.5msq

moneymattersnatter

So, the fence is ours. Husband confirmed. I don't know how he knows but he remembers better than me; it's the only one we do own. 
The plot next door is still a car park, with markings showing the front and back of house, clearly showing the problem - the house won't fit with the side gate they need to access the property. 
Funnily enough... if the fence is 40cm out at the back, it means the whole of the opposite side of the road is out 40cm too...  
Ie. The fence marries up with the front properties, but now we can see, not at the back. 

Section62

moneymattersnatter said:

So, the fence is ours. Husband confirmed. I don't know how he knows but he remembers better than me; it's the only one we do own.

You need to check the source of this information - there's a difference between having responsibility for a boundary (which might be stated in the title documentation), and actually owning an existing physical boundary feature (your contract with the developer).

The fence that is currently there isn't necessarily your fence - unless the developer specifically told you that those pieces of wood erected in that position were yours then it could still be a matter of debate.

A source of information you should check are the boundary treatment plans that would have been submitted as part of the planning application. They should be on the local council's planning website.  These would show what kind of walls, fences and hedges were going to be built and/or planted.  In this case because there are two developers involved and this boundary is also a boundary between developments, it is important to check the plans submitted by both developers and see if there is any inconsistency between them.  On the extract of the plan you posted previously the various boundaries are shown using at least three different types of line - which implies at least three different types of boundary feature were planned.

Check which kind of line (boundary type) each developer has shown for the boundary between your plot and Plot A1.  Are they consistent?  Is the linetype used specific to one or the other of the developers?  This won't prove ownership, but might indicate which developer had responsibility for putting up a fence on that boundary. If it happens to be developer "A" then it strengthens the claim the current fence was only temporary (and vice versa).

I assume from the plans that both developers worked on designing this development together and submitted a joint planning application.  Can you check on the council's planning website and confirm if this is the case?

I have been following this thread with interest and will make some more comments about some of the older posts which I hope might help you in getting this situation resolved.

Section62

homersimpson246 said:

I suspect that the developer are looking at what they can do so they can carry on building, their options are:

1. Do nothing until this is sorted out with you which could take months if not years if you drag it out.

2. Move all the house up a little bit to get the extra 400mm they need here (if there are 8 houses in a line its only 50mm each).

3. Build the other houses as they believe they should be, leave this one and then fight you for the land and hope they win and if not they end up either not able to build the house or not able to have access to the rear garden which will make it difficulty to sell.

Having worked for a few developers I would suggest that if they can they will go for option 2 as its the path of least resistance, at the end of the day they don't really care about this boundary issue as long as they can build what they need to and make money.

Although there is some dimensional tolerance in setting out, the planning authority will expect the buildings to be constructed in the place the planning consent was granted for.

As has already been commented on, there are only two properties left to be constructed in this row, which reduces the options available.

The house on plot A2 can't be moved because it is already close to the highway boundary and probably just on the very edge of the junction sight line.  Which means the only place the 400mm could be lost is between plots A1 and A2.

As the OP says, the buildings have been shoehorned into this development.  The gap between buildings A1 and A2 looks to be the bare minimum for access/maintenance and is probably only about 2m.  Reducing that 2m gap by 400m would be a significant change to the plans and might not be approved by the planners and building control.

Although that problem could be resolved through negotiation with the planners, for example by moving the access path for plot A1 to the other side, it would be risky for the developer to simply move the building over by 400mm on the QT, as ultimately the planning authority have powers that might result in the building having to be demolished and rebuilt where it should be. (a rare outcome, but it does happen).  As such, I wouldn't see that as the path of least resistance, it could turn out to be very costly.

I also think your assumption in 3 that they wouldn't be able to build A1 is an unsafe one.  If the intended gap between the buildings R122 and A1 was 2m, but as the OP has measured is 1.5m on their side, then it means there is approximately 400mm on the A1 side of the fence to the face of the flank wall of A1.  That would suggest there is sufficient space for the foundations and structure, and if the rights to place scaffolding in the OP's land can be used by developer "A" then there would be nothing practically stopping "A" proceeding with the build as planned.  It then becomes a simple boundary dispute between "A", "R" and the OP which can be resolved at leisure without impacting on the build programme.

For the same reason I don't think your option 1 is a realistic outcome.

All the above is based on various assumptions I've made and shouldn't be taken as fact.  The key point is that the likely strong desire of developer "A" to get on with building isn't necessarily a means of leverage to get the result the OP wants, the rights the developer(s) have likely reserved for themselves may allow them to crack on. (which often is the sole point of putting all those strange conditions in contracts)

homersimpson246 said:

The most important thing is don't show any weakness or compromise, its my garden and you are not having it is the right attitude to adopt in my view.

I think that would be a risky strategy without first having taken legal advice based on the full facts of the situation. An overall better strategy might  turn out to be negotiating with developer "R" to get the necessary changes to the OP's landscaping carried out as goodwill.  For example, getting them to construct a proper retaining wall on the boundary rather than having soil piled up against a wooden fence.  In general terms, approaching any situation in which litigation might be involved with a 'no compromise' attitude is a risk. Pyrrhic victories are not uncommon.

Section62

tacticalbanjo said:

GPS is only accurate to 30cm with the absolute latest receivers. Galileo can only do 1m accuracy, Glosnass is 2m. Military receivers are more accurate but obviously neither house builder is going to have one. So, no a millimetre accurate boundary line cannot be identified using GPS or any other method.

GPS equipment used for land surveying would be expected to work to an accuracy of 20 to 30mm or better. This kind of equipment is now relatively commonplace, I would expect a housebuilder of the scale of "R" to have access to tens if not hundreds of devices capable of using GPS technology to that level of accuracy.

However, for most work on a project of this type, a total station (a theodolite with an electronic distance measuring device) would be adequate to carry out the initial topographic survey and then setting out the features like roads and buildings. Typical accuracies quoted for total stations for distance measurement would be about +/-1.5mm and 1 or 2 parts per million per reading. So yes, in practice (and with the right techniques) a competent surveyor could achieve millimetre accurate distance measurement and setting out.

The relevance of this for the OP is that seradane was broadly correct in what they posted - the developer will have a digital model (CAD) representing the development as planned, to a very high degree of accuracy (far more than is needed for any practical purpose). Normal practice would be for that model to be referenced to a network of control points ("stations") distributed around the site, which could be referenced to the OS grid.

On the assumption at least part of that control network is still in place (which can be assumed because the development is still in progress) then it would be trivially easy for the as-designed position of the disputed boundary to be determined on site to millimetre accuracy. Albeit using a total station rather than GPS.

I'm not a lawyer, so can't comment on where the true legal boundary is, but I did notice the plan in the picture the OP posted next to the legal letter with the "Description of the property" would appear to be drawn by the developer (and probably derived from the digital model) rather than being an extract from an OS plan. In other words - if my assumptions are correct it is possible the red line on the plan the OP was presented with could be set out on site with an accuracy far beyond what the average boundary dispute usually has to work with.

I will leave it to someone with the right legal knowledge to comment on whether that red line actually represents the legal boundary, and what the implications are.

For completeness, seradane was also correct that a developer could produce measured ("dimensioned") drawings from the digital model showing precisely (i.e. fractions of a millimetre) where the different features were intended to be relative to each other - for example the offset of the disputed boundary relative to the flank wall.

knightstyle

Hey Opp.  Any update on this???

HampshireH

Hey OP. How you getting on with the developers (I'm assuming your getting notifications on this)

moneymattersnatter

Dearest all, I'm ever so sorry. There was a flurry of activity at Easter and I'd hoped to post a positive update within days, but sadly, I was overly optimistic. 

So, Friday 9th, we receive an email from our developer saying; 

I wanted to get in touch to advise that our Technical Manager has had no response yet from [other developer], in progressing this matter without disruption.  I’m sorry that I can’t give you more information at this time, and I have asked him to expedite this as soon as possible next week. 

So, imagine our surprise when, first thing Monday 12th April, we hear the car park being dug up, to make way for the new houses.  My husband got straight onto the phone to our Customer Services bod whilst I spoke to the Groundsman. 
The site manager wasn't available, but the groundsman reasussured me - "Yes, I know there was a problem here, but it's all been sorted, we're moving the houses over.  We've changed the plans!"  I breathe a sigh of relief and come to the back of the house, where my husband is turning the air blue. I calm him down with the update from the other developer. We're reassured again our developer will try and understand what's happening.

I'm happy. This feels good. No fence being moved. Our legal advice agrees BUT that we need to 'invite' all parties - with suitable legal authority - to confirm there is no longer any question about our boundary or the placement of the fence. 

I call our Developer, apologise slightly for my husband's anger, but he tells me he understands. I tell him that their first mistake - after putting the boundary in the wrong place (!), was trying to tell us this was not an error, but always 'temporary'.  It meant the bond of trust had been broken and we are taking legal advice.  I said we needed their help in getting it and because honesty is clearly an issue, we want to be present at the next conversation with the other developer. Platitudes, platitudes, platitudes and notification our bod has been promoted to regional customer services manager. Niaively, I believe him when he says he will pursue resolution of this matter for us. We've heard nothing from him since. 

So, now, we see the building is progressing at pace. I sent the legalese 'invitation' to confirm accuracy of boundary, which we hope to receive by next Thursday.  It's not looking hopeful though, as neither party have even confirmed receipt!  If we don't receive paperwork to confirm everything is fine,  our concern still relates to ironing out any irregularities with planning and position.  I spoke to my local authority with a 'what happens if...' query and they said we should put in a 'planning enforcement' notification to get them to check up.  I'm reluctant to, unless necessary. As it stands, we're benefiting. 

Apart from turning up the heat through the media, is there anything else we should do? 
Is it even newsworthy?! 😆
I am still really annoyed that our developer, effectively, landed a problem on our doorstep of their making, which has been a real drain on our time (and yours - thank you for following!) Their lies and subsequent poor communciation has compounded the damage the original problem caused.  I would be happy to now have to move the fence, but I'm not happy that either party have addressed how this happened and how to prevent it happening again in future. 

Hive mind, what are your thoughts? 
(also, apologies for not updating sooner, my email got hacked so I didn't receive the notifications!) 

FreeBear

moneymattersnatter said:  I would be happy to now have to move the fence, but I'm not happy that either party have addressed how this happened and how to prevent it happening again in future. 

Hive mind, what are your thoughts?

No. Your default position should be "My fence. It stays where it is". You should also insist that they cover your legal expenses to date and provide a written conformation that the fence will not be moved under any circumstances. Play hard ball and learn to say NO.

deannagone

Thank you very much for the update.  I wonder if its worth getting your solicitor involved at this point.  Maybe he/she could get an answer from the developer?

moneymattersnatter

The internet has ears; I just received this from the other developer; 

Thank you for your email.

 I can confirm that the boundary position is no longer disputed, however I am sorry I cannot assist you any further.

 As your relationship is with [your developer], you will need to communicate directly with them, they will be able to advise you further.

Kind regards

Customer Care​ It helps, in a way, but is not written in the 'legalese' our solicitor said we'd need, or with the confirmation of who has responded and whether they have the authority to confirm there are no further issues. I will update our provider and see what they say...