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

Section62

SteveD82 said:

I think under TPA Section 179 (7) I would have to be explicitly served a notice by the Council in order to be charged with an offence. It usually has a compliance / appeal date during which time (worst case) I will get my sledgehammer out.. 

 

Not quite (AIUI).

S179(7) provides a statutory defence that a person charged with the offence was unaware of the existence of the [planning enforcement] notice.  If you (personally) haven't been served a copy of the enforcement notice then 179(7)(a) is engaged.

However, S179(7) doesn't prevent you being charged, it only gives a defence if you are.  And although you should be able to rely on the statutory defence in those circumstances, it doesn't prevent the magistrate/judge turning to you and asking "Were you aware of the existence of the notice Mr D82?" - which given the search results and your contact with the council would need a very carefully thought through response.

On the second point, no, the time allowed for compliance/appeal has passed.  This would have been time to comply with or appeal the original enforcement notice.  The case has progressed beyond that stage.  The reference in S179(7) is to "a copy" of the notice - in other words just making sure you are aware of the offence that is being committed through ongoing non-compliance.

(INAL)

SteveD82

Thanks & very true - as I’ve said before my primary concern is the transfer of liability rather than the cost of compliance (a few grand).

In an extreme, improbable but still possible scenario the Council Enforcement Team could charge me with non-compliance on day 1 of taking the keys. Given my line of work I am sometimes asked “have you ever been charged with an offence” so not ideal at all if I have to answer “yes”.

I am also not too happy about the fact the charge stays on the register indefinitely, unless withdrawn by Council (which even compliance does not guarantee) - could turn buyers off in future who may see it & just not “like the look of it”… despite being resolved.

I think I will insist this is dealt with prior to exchange and if vendor does not agree I’ll walk.. just annoying this wasn’t caught pre-searches by either my explicit question to EA when I found the notice on Planning Website nor disclosed on TA6 form under planning permissions section.

Frustrating!

Section62

SteveD82 said:

Thanks & very true - as I’ve said before my primary concern is the transfer of liability rather than the cost of compliance (a few grand).

In an extreme, improbable but still possible scenario the Council Enforcement Team could charge me with non-compliance on day 1 of taking the keys. Given my line of work I am sometimes asked “have you ever been charged with an offence” so not ideal at all if I have to answer “yes”.

I am also not too happy about the fact the charge stays on the register indefinitely, unless withdrawn by Council (which even compliance does not guarantee) - could turn buyers off in future who may see it & just not “like the look of it”… despite being resolved.

I think I will insist this is dealt with prior to exchange and if vendor does not agree I’ll walk.. just annoying this wasn’t caught pre-searches by either my explicit question to EA when I found the notice on Planning Website nor disclosed on TA6 form under planning permissions section.

Frustrating!

Yes, improbable but a possibility, and a position it is understandable people would want to avoid.  This is why I think being proactive with the council - making it clear you want to work with them to get this sorted - may be one way forward.

Unfortunately the indefinite nature of the notice is a consequence of the owner's refusal to deal with the breach at an earlier stage.  The council may be willing to withdraw it following change of ownership, because the logic of the notice being indefinite is so a land owner can't take the action required by the notice to get it withdrawn, and then redo whatever it was which was in breach. If the notice expired as soon as compliance had been achieved then the planning authority would have to start from scratch with a fresh notice - and some people are very persistent in doing what they want to do regardless of planning law.  Change of ownership and you demonstrating quite clearly that you have no intention of rebuilding the wall may eventually lead to the notie being withdrawn, but don't rely on it happening.

If you do go ahead with the purchase, I would make sure you have plenty of clear pictures showing the wall as it currently is.  If there are any enquiries about the enforcement notice when you come to sell you'd be able to show the buyer/(s) solicitor what the wall was like, so they can better understand that there is no problem with the wall as modified.

SteveD82

Thanks Section62 - you have been very helpful. If I proceed then I intend to submit a new planning application to build the wall up to 2m in sections with brick piers and wrought iron - there are nearby approved precedents so the permanent nature of the change would probably convince the council I was not going to reintroduce the solid brick wall & lead to a withdrawal. 

Section62

SteveD82 said:

Thanks Section62 - you have been very helpful. If I proceed then I intend to submit a new planning application to build the wall up to 2m in sections with brick piers and wrought iron - there are nearby approved precedents so the permanent nature of the change would probably convince the council I was not going to reintroduce the solid brick wall & lead to a withdrawal. 

Applying for planning consent for a different style of wall could certainly help things, as the LPA could condition the consent requiring the wall to be kept the same as the approved plans. They could then enforce for breach of condition rather than for development without consent, and would make the enforcement notice largely redundant.

However, be aware that there isn't really such a thing as precedents when it comes to neighbourhood or street-scale consents.  Each application has to be considered on its own merits, and the fact a previous consent included a particular thing doesn't mean a future consent has to allow the same. Policies and circumstances change all the time, so what one person was allowed to do doesn't guarantee you will be allowed to do the same.  What the neighbours have done should be a consideration for the decision maker though.

Do you know the exact reason why the taller solid wall was a problem?

SteveD82

I think it was really just a case of breaching the PD rules by building over 1m without permission that caused the problem. They indicated a “softened” design with brick piers, trellis/wrought iron would be ok but that design was not put before them. You only get one opportunity to appeal and one attempt at retrospective planning so they blew it. 

SteveD82

Does anyone have an idea of how likely the Lender would be to overlook the enforcement notice, if they have reassurance no fines are outstanding and have a quote from builder to carry out compliance work. Thinking it is easier for me to complete and do the work myself.. is it 99% a straight "computer says no"... the cost to comply is 0.5% of the property value.. so hardly material. 

Just seems the vendor has a mental block about doing the works themselves.. 

youth_leader

If the vendor has only been recently widowed, she's probably still feeling numb.  I couldn't function for at least a year, grief affects people in different ways.  She might feel it is not something her husband wanted to do, and it feels disloyal to his memory to do it. 

user1977

SteveD82 said:

Does anyone have an idea of how likely the Lender would be to overlook the enforcement notice, if they have reassurance no fines are outstanding and have a quote from builder to carry out compliance work. Thinking it is easier for me to complete and do the work myself.. is it 99% a straight "computer says no"

Like I said above, I think that's the most likely response, considering that the standard instructions where there's merely a possibility of an enforcement notice (because of recent unconsented works) are to either sort the problem or insure against it. So they're not likely to be any more flexible where there's actually a live enforcement notice.

And may also depend on advice your conveyancer is giving to the lender?

Section62

youth_leader said:

If the vendor has only been recently widowed, she's probably still feeling numb.  I couldn't function for at least a year, grief affects people in different ways.  She might feel it is not something her husband wanted to do, and it feels disloyal to his memory to do it. 

Hopefully she will be getting some good advice before she sells.  Loyalty to the husband could cost her a very significant amount of money if she can't find a buyer willing to pay a decent market value to take on a property with an outstanding planning enforcement notice.  If the mortgage companies won't touch it she could be reduced to finding a cash buyer.  Selling with a big reduction may add to her grief, although it may only be in hindsight the enormity of that is realised.