Planning permission refused and indemnity

Walrus_NK

Looking for advice please. A potential purchase property's searches has thrown up a refusal for a top rear extension back in the early 80s, which was built anyway. The refusal is recorded online, but there is no information as to why it was refused and the seller has not passed on any information they may have received from the council regarding the refusal. We suspect it's because the build is 100mm too near to the boundary and/or a neighbour complained (and the extension was built after the neighbour moved away). 
The seller's solicitor offered an indemnity which is for lack of consent, but is null and void if plans had been refused, which is the case here. Our solicitor is now seeing is the indemnity can be amended to cover the refusal. Whether an indemnity can cover for a refusal, I don't know. 
Has anyone been in this position before? I'm not so concerned about enforcement action, as the build has been there for over 40 years, but more concerned about resale. 
Thank you!

user1977

Are you sure the insurance is void even if the refusal (and the works) date back 40+ years and nothing has happened since? I would have that eminently insurable, the council would be well out of time to do anything about it now. I don't even see the point of insurance, unless there's a suspicion that the works were actually done much more recently.

Walrus_NK

I think the issue is that the refusal will on record permanently, so differs to lack of consent, so the council can enforce it whenever. If the plans had never been submitted, then we'd be absolutely fine due to the amount of time passed. But as plans were submitted and then refused, the refusal stays on record forever and action could be enforced. 

user1977

Walrus_NK said:

I think the issue is that the refusal will on record permanently, so differs to lack of consent, so the council can enforce it whenever. If the plans had never been submitted, then we'd be absolutely fine due to the amount of time passed. But as plans were submitted and then refused, the refusal stays on record forever and action could be enforced. 

I'm not convinced that's accurate. If the works go ahead (did they even match what was applied for?) then there is still a deadline for enforcement action.

chrisw

I don't see why you need an indemnity insurance. It will long since have been immune from any enforcement action. There is no way to change a historic refusal notice but it's now irrelevant anyway.

Titus_Wadd

Too much time has passed as the last two posts have said.  What are you actually worried about?  Facing enforcement?  Or a potential buyer being put off in the future?

There seems to be a lucrative business in selling these indemnity policies.

Walrus_NK

Thanks so much for the replies! I didn’t realise there was a time period for enforcement when something had been refused, and that the council can enforce it whenever they like (if there was a complaint for example). I’m more worried about the resale and potential buyers being put off by the indemnity and refusal. 

user1977

Walrus_NK said:

I’m more worried about the resale and potential buyers being put off by the indemnity and refusal. 

Why would they be put off (unless they have been as badly advised as you seem to have been about how planning works)? The alteration is ancient history, nothing's going to happen about it.

Sarahspangles

Walrus_NK said:

Thanks so much for the replies! I didn’t realise there was a time period for enforcement when something had been refused, and that the council can enforce it whenever they like (if there was a complaint for example). I’m more worried about the resale and potential buyers being put off by the indemnity and refusal. 

The time limit used to be four years and is now ten years.  https://www.legislation.gov.uk/ukpga/1990/8/section/171B

It is possible to apply for a ‘certificate of lawful development’ in scenarios where you want to sell a property and the buyer asks for proof all development is above board and there’s no risk of enforcement action. But the process is slower and potentially more expensive than the insurance policy.

Section62

user1977 said:

Are you sure the insurance is void even if the refusal (and the works) date back 40+ years and nothing has happened since? I would have that eminently insurable, the council would be well out of time to do anything about it now. I don't even see the point of insurance, unless there's a suspicion that the works were actually done much more recently.

...unless the council commenced enforcement action at the time (within the time limit) in which situation there may be an enforcement case on file ready to take up again if someone agitates enough.

Walrus_NK

There was no enforcement action at the time, so the build has sat happily for over 40 years. Bizarrely, the regulation certificates (for the windows etc) are all in check, just not the plans. We've had an indemnity drawn up that states the refusal of permission is part of the insurance, so I think we're covered... We've not been able to see the original plans (from the 80s) and are unable to do so as it voids the indemnity if we approach the council about the build. A surveyor has said the build is structural sound, so the refusal is likely down to either being a touch too wide or a neighbour complaint (who then moved away).