Live Planning Enforcement Notice - current owner prosecuted and still not complied

SteveD82

Hi - interesting one.. a "live planning enforcement notice has shown up on a local search for a residential property I am considering buying in London. 

The planning issue itself is relatively basic- a red brick boundary wall was built too high and should be reduced from 2m to 1m. So it will cost a few thousand to put right. This does not bother me. 

What does bother me is the current owner's husband (since deceased) did not comply with the notice (served a few years ago) and was ultimately prosecuted & fined at a Magistrates Court when his appeal and retrospective planning applications failed. 

The notice still has not been complied with (several years have passed) and the vendor (a widow) simply wants to exchange without complying first, believing the issue is "minor" and too burdensome for her to sort. 

I am concerned by the fact the "liability will transfer with the land" - if there a chance the offence (committed by the previous owner's husband) will transfer to me, in some way since I will be the new owner?

Obviously (assuming I buy) - I plan to comply with the notice right away and reduce the height of the wall immediately, send proof to the council and ultimately have the notice withdrawn. I am just concerned given several years have passed since the original Magistrates Court Prosecution this issue may have escalated - could have gone to high Court (who knows).. the vendor is telling me no further action has been taken other than the £1000 fine but obviously i have no way of knowing if this is actually the case. 

My gut is telling me not to exchange (nevermind complete) while this issue is unresolved since there is a chance I could put down a deposit and then my lender pulls out.. leaving me with a 10% loss. Even with special conditions in the contract there is a chance something goes wrong with the lender pulling out due to the notice. 

Has anyone encountered this situation and managed to circumvent it without the current owner complying first? 

PS: 4 year and 10 years rules do not apply here because the enforcement has been actioned - the council noticed the planning issue within the 4 year time period so we cannot rely on that clause as a "get out of jail"

canaldumidi

What is your conveyancer advising?

user1977

And are you buying with a mortgage? 

Section62

SteveD82 said:

Hi - interesting one.. a "live planning enforcement notice has shown up on a local search for a residential property I am considering buying in London. 

The planning issue itself is relatively basic- a red brick boundary wall was built too high and should be reduced from 2m to 1m. So it will cost a few thousand to put right. This does not bother me. 

What does bother me is the current owner's husband (since deceased) did not comply with the notice (served a few years ago) and was ultimately prosecuted & fined at a Magistrates Court when his appeal and retrospective planning applications failed. 

The notice still has not been complied with (several years have passed) and the vendor (a widow) simply wants to exchange without complying first, believing the issue is "minor" and too burdensome for her to sort. 

I am concerned by the fact the "liability will transfer with the land" - if there a chance the offence (committed by the previous owner's husband) will transfer to me, in some way since I will be the new owner?

Obviously (assuming I buy) - I plan to comply with the notice right away and reduce the height of the wall immediately, send proof to the council and ultimately have the notice withdrawn. I am just concerned given several years have passed since the original Magistrates Court Prosecution this issue may have escalated - could have gone to high Court (who knows).. the vendor is telling me no further action has been taken other than the £1000 fine but obviously i have no way of knowing if this is actually the case. 

My gut is telling me not to exchange (nevermind complete) while this issue is unresolved since there is a chance I could put down a deposit and then my lender pulls out.. leaving me with a 10% loss. Even with special conditions in the contract there is a chance something goes wrong with the lender pulling out due to the notice. 

Has anyone encountered this situation and managed to circumvent it without the current owner complying first? 

PS: 4 year and 10 years rules do not apply here because the enforcement has been actioned - the council noticed the planning issue within the 4 year time period so we cannot rely on that clause as a "get out of jail"

Yours is a good example of why sometimes the "don't worry about old planning issues" advice can be wrong.

In your position I would probably contact the council's planning enforcement team and explain what you intend to do, and ask them to confirm to you in writing that there would be no action taken against yourself if you complied with the notice within 'x' days of completion.  They may be willing to give such assurance if it means they know they can get this case cleared off their desks without any further hassle.

One thing to note is an enforcement notice doesn't expire or cease to be valid, even when the required work has been completed.  The notice will still show up on future searches unless the council can be persuaded to withdraw it.

eddddy

SteveD82 said:

My gut is telling me not to exchange (nevermind complete) while this issue is unresolved since there is a chance I could put down a deposit and then my lender pulls out.. leaving me with a 10% loss. 

So you need to make sure that your lender is aware of the issue before you exchange contracts.

To be honest, your solicitor will almost certainly tell the lender before you exchange contracts, and I suspect the lender will withdraw their mortgage offer unless/until this is resolved.

Getting the wall demolished might not be too much of a problem for the seller (somebody with a sledgehammer?), but your solicitor / lender might want written confirmation from the planning authority that the enforcement order has been complied with. That might take a bit of time.

SteveD82

Buying with a mortgage (fairly large deposit) so issue is not really material risk in plain financial terms for the Bank.. 

My conveyancer hasn't really come across this case before but is definitely erring on the side of caution. 
Advising I insist on having the issue resolved by the current owner before proceeding. 

I understand this is sensible but the owner is now instructing the property be re-listed since I am "wasting her time".. as most know there are a dearth of suitable properties on the market and I have spent 6 weeks on this transaction (there was a 5 week delay on getting searches for instance). 

Obviously my conveyancer will have to report back to the lender which I am fine with (I am honest) - I just feel surely with a builders estimate of the costs and other supporting documentation it's a somewhat quantifiable financial risk to a lender. 

The real unknown is what my position may be if the "offense" transfers over to me (personally) in some way.. 

In short I am trying to weight the risks (financially and legally) to myself versus the known risk of having the transaction fall through (losing my mortgage offer, having to get a short-let, waste of survey/solicitor fees etc).. 

Thanks

SteveD82

Thanks - the fact the notice may not be removed from the searches is annoying (unless withdrawn) but I am confident I can mitigate the risk by starting a fresh planning application once the enforcement is complied with. So this should clear things up before I sell. Spoke with Council Enforcement Team, they seem apprehensive to put any sort of “offer” in writing.. they just don’t see why the current owner won’t comply (totally reasonable) but it may take a few more offers to fall through after mine before she finally bites the bullet & does the work.. not much good for me.. 

Section62

SteveD82 said:

The real unknown is what my position may be if the "offense" transfers over to me (personally) in some way.. 

The offence in question is being in breach of a planning enforcement notice as owner of the land. (S179(2))

AIUI, the historic offence is nothing to do with you and never will be.  However on completion and you becoming the 'owner' a new offence occurs if the planning enforcement notice is still breached.  The council could then commence action against you for the offence occuring in your ownership.  Hence my suggestion you proactively ask the council for a period of grace to get the situation sorted out.

See Section 179 of the Town and Country Planning Act 1990 for details.

https://www.legislation.gov.uk/ukpga/1990/8/section/179

(I'm not a lawyer, so seek professional legal advice if unsure)

ProDave

My thought is by paying the fine, still not complying, and no further action has been taken, would be do nothing.  You might then get away keeping the higher wall?

Just have it in your mind if the council do resurect the enforcement you just have to say "oh sorry I did not realise, I will reduce the height immediately" and they will go away.

RAS

The seller has probably been living with this notice for years. And can't understand what the fuss is about, and possibly feels obliged to continue her deceased husband's intransigence.

She's may actually prefer to sell at a lower price to someone who's prepared to support her deceased partner's view of the situation?

Not suggesting you should ignore the situation, but perhaps be aware that logic may not enter into the calculations.

SteveD82

Thanks - I’ve already got a builder lined up to do the work and Council said all they need is a photograph to evaluate the wall has been rectified. I would literally get this done within days of moving in so I think the chances of The Council taking me to court would be low within that timeframe.. I was more concerned off finding myself in a situation where brown envelopes with fines have been dropping through the letterbox for 3 years (or proceedings have been escalated to High Court) and I immediately find myself on the hook for an immediate fine as the “new lucky owner”?