Newbuild Land Dispute Planning Enforcement

newbuildnightmare

We recently purchased a new property in a small development.  The property has a suds directly to the side of it about 100ft long and a suds directly in front of it again about 100ft long.  The builder told us that these two areas come with the house and are included on the TP1 boundary of the property. 

The suds to the side is literally on the side of our property and can be accessed directly from our front garden. Basically the front garden wraps around to the side of the house which is a seamless join into the side suds.  In the process of buying the property we asked our solicitor to check with the builders that we could erect a fence to enclose it and add a shed / greenhouse etc.  The Builders solicitor said yeas this is fine as he was writing the covenants for the TP1 which only stipulated that our responsibility was to ensure free flow of water through the suds which it obviously still does.  

We moved in and a couple of weeks later erected the fence, shed and greenhouse.  A couple of months later planning enforcement turn up and say that we are using land designated as a public open space and as such we have changed the use of the land.  Their argument is that whilst it may be on our TP1 within our boundary it is still public open space.  Checking back with both solicitors they both confirm this isn't the case and there is no mention that this suds or any other on the development is public open spaces.  Other properties also have sections of other suds within their boundary so presumably everyone else will have the same issue in time.  The solicitors have been asked to advise the planning department why they think the land is not public open space but the planning department have already said that they feel any change of use will likely not be supported.

So, I have bought a new property which the builder and the builders solicitor say its within my domestic curtilage and confirmed on an email that i can do what i requested but planning are saying they are wrong.  My understanding is that suds don't actually have a legal classification of land by law so the planning department purely refer to them as public open spaces. I have 6 weeks to rectify the problem or i have to take everything down and put it back to an unfenced dangerous muddy hole that the public can access even though its on my land that i am responsible for and need to maintain!!

anselld

In the first instance appeal against the enforcement notice to the planning inspectorate submitting all the details you have mentioned above as evidence.

Have you looked at the approved planning documents from when the estate was built to see how the disputed land is designated?

Section62

newbuildnightmare said:

We recently purchased a new property in a small development.  The property has a suds directly to the side of it about 100ft long and a suds directly in front of it again about 100ft long.  The builder told us that these two areas come with the house and are included on the TP1 boundary of the property. 

The suds to the side is literally on the side of our property and can be accessed directly from our front garden. Basically the front garden wraps around to the side of the house which is a seamless join into the side suds.  In the process of buying the property we asked our solicitor to check with the builders that we could erect a fence to enclose it and add a shed / greenhouse etc.  The Builders solicitor said yeas this is fine as he was writing the covenants for the TP1 which only stipulated that our responsibility was to ensure free flow of water through the suds which it obviously still does.  

We moved in and a couple of weeks later erected the fence, shed and greenhouse.  A couple of months later planning enforcement turn up and say that we are using land designated as a public open space and as such we have changed the use of the land.  Their argument is that whilst it may be on our TP1 within our boundary it is still public open space.  Checking back with both solicitors they both confirm this isn't the case and there is no mention that this suds or any other on the development is public open spaces.  Other properties also have sections of other suds within their boundary so presumably everyone else will have the same issue in time.  The solicitors have been asked to advise the planning department why they think the land is not public open space but the planning department have already said that they feel any change of use will likely not be supported.

So, I have bought a new property which the builder and the builders solicitor say its within my domestic curtilage and confirmed on an email that i can do what i requested but planning are saying they are wrong.  My understanding is that suds don't actually have a legal classification of land by law so the planning department purely refer to them as public open spaces. I have 6 weeks to rectify the problem or i have to take everything down and put it back to an unfenced dangerous muddy hole that the public can access even though its on my land that i am responsible for and need to maintain!!

Land ownership and property cutilage are two different things as far as planning law is concerned.  You can own adjacent land which is not part of the curtilage, or part of the curtilage can be owned by someone else.

On new builds it is common for people to own land which has a 'public' function - for example amenity space or the very common 'service strip'.  This is increasingly common as neither the council nor the developer wants to own and/or maintain the odd little spaces modern developments create.

In terms of planning, the developer's solicitor can only really advise you from the developer's perspective, i.e. in terms of covenants.  Their advice on planning issues is of limited value.

In addition to change of use, the planners could take the view that the fence/sheds/greenhouse need full planning consent, have they mentioned this?

Have you been served with a planning enforcement notice, or is the 6 weeks a 'friendly' request to get this sorted before they take further action?  If they haven't yet served an enforcement notice then my advice would be to do what you need to do to avoid that eventuallity.  Once served (and subject to successful appeal), planning enforcement notices tend to stick around forever... when you come to sell the property an enforcement notice may cause your buyer's solicitor/mortgage co to have palpitations, and you may have problems selling, even if you have removed all the offending items.

newbuildnightmare

Hi

• The land / suds is within our boundary red line on the TP1 doc and there are no covenants or rights of access listed on the TP1.

• The suds land is laterally joined to our front garden and as far as anyone can see it is all totally within the red box of our curtilage on the TP1.

• The six weeks is an email from from the planning enforcement officer giving us 6 weeks to apply for a change of use of land. 

• The principal planning officer has asked for our solicitor to email him to explain why we think the land / suds is not public open space.

• We have asked the enforcement officer to to identify all areas of public open space on the development (small street with 13 new builds).  She declined to do so and the response was a list of all planning submissions and basically if you want to know the answer check the documents listed.  We have of course already checked all of these and there isn't a single reference in any of the docs that even mentions public open spaces.  I have emailed the enforcement officer this fact and she has gone silent.

• The builder and the builders conveyancer has also stated that there isn't any wording in any of the docs declaring public open spaces.
• Do you know if SUDS / Swale land has a legal classification as I am under the impression it doesn't, I have read that it is only referenced as public open spaces?

Thank you ever so much for you feedback.

newbuildnightmare

How would i know that the land within my TP1 includes land that is classed as a public open space as it isn't highlighted on any planning doc or covenant.  Presumably the other two swales on the street will have the same issue as the home owners believe they also own this land as well as they are within their TP1's.

daveyjp

The SUDS/swales detail will be in one of the planning documents relating to water management, drainage and flood risk. Such drainage solutions are normally kept outside of individual properties to ensure access for regular maintenance which is then recharged to occupiers through the estate management charge.

newbuildnightmare

@daveyjp
Hi yes that's the issue, I can see all the docs relating water management, risk and drainage but there is no mention anywhere that it is classed as public open space.  Furthermore they have added the swale land to be within my red box boundary on the TP1.  There isn't a management company and the only reference the planning dept make about the boundary is a fence on the masterplan.  This fence doesn't run the full length of by boundary of my domestic curtilage as it stops 2/3rds along the boundary which means my front garden merges seamlessly into the SUDS.  There is no evidence anywhere that the SUDS is classed as a public open space on any doc in the portal, the only argument planning are making is that "it is public land" i have asked for them to prove this and they can't / won't.

newbuildnightmare

The land the suds is on isn't designated on any plan as any type of land. The only indicator is that it is within the redline on my TP1.

Section62

newbuildnightmare said:

The suds land is laterally joined to our front garden and as far as anyone can see it is all totally within the red box of our curtilage on the TP1.

As I mentioned above, for planning purposes 'curtilage' isn't the same as land ownership - the red line on the Land Registry plan shows the boundary of your ownership, but that isn't necessarily the curtilage when it comes to planning decisions.

newbuildnightmare said:

The six weeks is an email from from the planning enforcement officer giving us 6 weeks to apply for a change of use of land.

OK, so they haven't issued an enforcement notice yet, which means there is nothing to appeal.  Have they said what use planning use class the land currently is? ('Open space' is a description, the use class will be a letter+number e.g. "C3", or else "Sui Generis")

newbuildnightmare said:

The principal planning officer has asked for our solicitor to email him to explain why we think the land / suds is not public open space.

We have asked the enforcement officer to to identify all areas of public open space on the development (small street with 13 new builds).  She declined to do so and the response was a list of all planning submissions and basically if you want to know the answer check the documents listed.  We have of course already checked all of these and there isn't a single reference in any of the docs that even mentions public open spaces.  I have emailed the enforcement officer this fact and she has gone silent.

The builder and the builders conveyancer has also stated that there isn't any wording in any of the docs declaring public open spaces.

From what you describe (and without seeing photos and documents) I'm surprised the council would consider the SUDS to be anything other than ancillary to the dwelling(s) and therefore come under the C3 use class.

What I'd expect them to do is to put a condition in the consent requiring the provision of surface water drainage according to the plans, and thereafter retain (and maintain) it.  Such a condition may also require the buyer of the property to covenant that they will keep the SUDS as SUDS, and do whatever maintenance is required, unless the developer is arranging for a management co to do this.  The conditions would effectively preclude you putting up sheds/greenhouses etc, or other forms of development, which would impact on the operation of the SUDS.

This is the bit I don't get... why are planning enforcement concerned about change of use, when the fundamental issue (if applicable) is development (e.g. putting up buildings) within the SUDS area?  Likewise, unless you have permitted development rights for the fence/shed/greenhouse, the more obvious enforcement angle is that these weren't included on the approved plans and therefore (potentially) represent unlawful development?

newbuildnightmare said:

Do you know if SUDS / Swale land has a legal classification as I am under the impression it doesn't, I have read that it is only referenced as public open spaces?

As above, I'd expect SUDS / Swale land to either be "Sui Generis", or else have the same use class as the development it was provided for.

newbuildnightmare

Hi the only reference on our TP1 for the SUDS is " we must ensure free flow of water is maintained in the SUDS".  Nothing else references the SUDS and there is no mention of the land classification in any document on the portal or TP1.  The builder has confirmed that they are not setting up a management company also.  The fence, shed and greenhouse do not hinder the SUDS volumetric capacity or performance and i have offered to fund an engineers report to confirm this.  They simply say I have changed the use and I am now using the the land as an extension of my garden which i cannot do on public open space, even if it is within my boundary on the TP1.  I have repeatedly asked them what classification they have put on the land and where it is confirmed on the portal but they refuse to tell me.

newbuildnightmare

What would be the best approach to stop them from enforcing this and making us take the shed etc down. Nothing we have done hinders the SUDS and all they keep saying is that we are using the land as an extension to our garden which is a change of use. - devastated ..