Enforcement Notice

loubel

The solicitor would not do another local search but would be expected to have looked at the certificate of lawfulness when it was sent over. If this stated it was conditional on additional works being carried out then they should've raised this with the seller's solicitors to obtain confirmation that this had been done. However, from what you have posted previously, it is not clear that this was actually stated on the certificate?

k1irk1978

loubel said:

The solicitor would not do another local search but would be expected to have looked at the certificate of lawfulness when it was sent over. If this stated it was conditional on additional works being carried out then they should've raised this with the seller's solicitors to obtain confirmation that this had been done. However, from what you have posted previously, it is not clear that this was actually stated on the certificate?

Thank you, I agree that it was not clear on the Certificate Of Lawfulness and even if I had seen it myself I don’t think I would have identified that this was a condition as it reads as though it is simply a stating what work has been undertaken. I assume that this should then be taken up with the council 

Section62

k1irk1978 said:

Thank you for all the advice, I have had a more time to consider the situation and I have also had some legal advice from the helpline provided by my home insurance who have advised that in the first instance I should contact my solicitor. She is on annual leave until Monday so I am expecting a call back then. In the meantime, I was hoping that I may be able to get some further advice on the following:

...

I appreciate that this may be as simple an issue to rectify as painting the UPVC grey, however, as the property in a 4 storey terrace house, even this will incur considerable expense as it will require a lot of scaffolding.

Any advice would be greatly appreciated as this is an area I have very little experience in.

I'd suggest you need to start with thinking about the end-point... what is the outcome you are hoping to achieve?

If the answer to that looks something like 'Get the solicitor to pay for the expensive alterations' then you also need to be realistic about the chances of that happening.

As a general rule solicitors deal with conveyancing on the basis of sending the client a bunch of documents, telling you to read them all very carefully, and revert to them if you have any questions.  There are some obvious things they will flag up (especially if a mortgage is involved) but for a standard fee it is probably unrealistic to expect them to read something like a CoL and pick up on a nuance of the wording.  If you specifically asked them to scrutinise the planning position in depth, that would be a different situation.

In my experience solicitors tend to deal with complaints in two main ways - either pass it to their PI insurer who may make a payment to get you to go away, or they will fight any claim tooth and nail to protect their professional position.

I don't mean to sound defeatist, but you need to be clear on what you want to achieve here and your realistic prospects of sucess, otherwise you will just be burning your time and energy chasing the solicitor in addition to expending more money than just the financial cost of getting the alterations done.

aoleks

didn't read the whole thread, so not sure this was said before, but planning permission and building control are two completely separate things. in fact, they are so separate that building control would happily provide a completion certificate for something knowing that you don't have planning permission for it. they simply don't care, unless it involves a construction issue.

with that in mind, you do have a certificate of lawfulness, which basically means the works have been carried out to a standard. everything is ok and everything works.

that certificate does NOT cross-reference any works with the actual planning permissions.

example:

you apply for planning permission for an extension that maintains the existing aspect of the property. council approves, on condition that your bricks and windows match.

you carry out the works, but instead of using red bricks and white windows, you use green bricks and purple windows. building control officer drops by, sees that the bricks are of a weird color, but they are real bricks, so they're fine. same with the windows: a bit weird, but they comply with standards in this country, so he signs it off. he will never check the planning permission, as the aspect of the building are not his problem, he couldn't care less.

same with you: work was carried out, but not to the specification required by the planning team. building control signed it off, because despite being grey, the cladding is fit for purpose. doesn't change the fact that the planning team can take action against you.

having said that, just paint it and move on with your life, it's not a real problem...

Section62

aoleks said:

didn't read the whole thread, so not sure this was said before, but planning permission and building control are two completely separate things. in fact, they are so separate that building control would happily provide a completion certificate for something knowing that you don't have planning permission for it. they simply don't care, unless it involves a construction issue.

It isn't that they "don't care", it is a limitation on what the law allows them to do.  There are no grounds for refusing to issue a building regulations completion certificate due to planning irregularities - if the work complies with regulations then a certificate has to be issued (assuming all other aspects of the BC process are in order)

(if that doesn't make sense then compare/contrast with a court banning someone from driving even though they don't have a driving licence. In 'common sense' it is daft, but the law constrains what action can be taken, and on deeper analysis it does make sense)

aoleks said:

you carry out the works, but instead of using red bricks and white windows, you use green bricks and purple windows. building control officer drops by, sees that the bricks are of a weird color, but they are real bricks, so they're fine. same with the windows: a bit weird, but they comply with standards in this country, so he signs it off. he will never check the planning permission, as the aspect of the building are not his problem, he couldn't care less.

Again it isn't about not being his (or her) problem or the amount they care. It simply isn't the role of a BCO to check work complies with planning consent.  In the same way a police officer visiting a home to inquire about a disturbance won't go back to the station and check whether there is planning consent for an extension.

However, at many councils the BC and planning teams share information about work and alert each other if there is a serious irregularity.

aoleks said:

having said that, just paint it and move on with your life, it's not a real problem...

Painting only works if the only issue is with the colour and the LPA accept this option.  It is a "real" problem if the work isn't done and an enforcement notice is issued, also the cost of getting the work done isn't insignificant.

aoleks

you're just saying what I said: BCO doesn't "care" about planning issues because it's not their business, they can't do anything with it. my point was simply that you can have a completion certificate, it doesn't mean the work will have been done to the spec required in the planning decision.

Section62

aoleks said:

you're just saying what I said: BCO doesn't "care" about planning issues because it's not their business, they can't do anything with it.

No, there's a subtle but very important difference.

You said "...building control would happily provide a completion certificate for something knowing that you don't have planning permission for it. they simply don't care..."

The reality is they have no legal grounds not to issue a completion certificate if the work complies with regulations.  It doesn't mean they are "happy" about doing it, or "simply don't care", or that "they can't do anything with it".

Most of the LA BCO's I know do care a lot, and wouldn't be happy with the situation if they were aware of a significant planning breach. Which is why they would usually do what they can do, which is to email a colleague in planning enforcement to make them aware.

k1irk1978

Thank you for the explaining the difference between building and planning, until this week I was totally unaware that these were two different things and I was under the impression that having a building certificate meant that all was in order with the dormer. I would, however, expect that a conveyancer acting on my behalf in the purchase of a property would know the difference between the two aspects of the approval. I don't think it's unreasonable to expect that, particularly as she was aware that a retrospective planning application was pending for it, as part of her due diligence she should throughly check both the CoL and the Building Cert to make sure that everything was in order. As I said, until this week, I had never even heard of a CoL and didn't have sight of the one relating to my property until after we'd moved in, my solicitor on the other hand had seen it. I think ultimately I would like somebody to be held accountable for this whether it's the solicitor, the vendor or the planning officer as why should I be out of pocket for someone else's mistake dependent on where the blame lies.

aoleks

let's simplify this: you know what a lawyer does, and a property solicitor is a type of lawyer. would you expect a lawyer to go and visit each property they help buy with a measuring tape to check every parameter of an extension or alteration?

no, you wouldn't, because it's extremely ridiculous to even think about thinking about it. the solicitor can not possibly know what's been built and how, they have no expertise in it. the paperwork is ok and that's what the solicitor is interested in. you do have planning permission and building control believes the construction is decent and meets the required standard, that's all there is to know for conveyancing.

the actual materials used, dimensions on site, colors or any other specifications are to be checked by you and your surveyor.

stop trying to lay the blame on someone, it doesn't work like that. you bought the house, which means you now carry the risk for that property, whatever that might be, UNLESS you were deliberately lied to about certain things YOU INQUIRED about. did you specifically ask if the cladding meets the planning restrictions? no, you did not.

anyway, what's your loss? you haven't even received your enforcement notice, you're clueless about what the council wants. wait for the letter, read it, let it sink, fix the issue and tell the council to go find something else to do.