Newbuild Land Dispute Planning Enforcement

daveyjp

Having a further dig around the documents the plans and drainage detail suggest this is a swale serving a wide area of the development.  Large areas of the highways, footpath and over 20 parking spaces.

Planning doesn't concern itself with land ownership, just land use.  They will be working from the position the swale is a shared facility benefitting the whole development and whilst legal ownership of land may be to one property, the benefit of the swale is for the wider area and development on the swale area is therefore not permitted. 

Section62

daveyjp said:

Having a further dig around the documents the plans and drainage detail suggest this is a swale serving a wide area of the development.  Large areas of the highways, footpath and over 20 parking spaces.

Planning doesn't concern itself with land ownership, just land use.  They will be working from the position the swale is a shared facility benefitting the whole development and whilst legal ownership of land may be to one property, the benefit of the swale is for the wider area and development on the swale area is therefore not permitted. 

Also looks like there is potential for a phase 2 at some point in the future, which may use the same drainage system.

Somewhere I read that the swale parallel to the main road would be adopted by the council, but the one at the side of the OP's house wasn't mentioned there.  The impression I got was the highway drainage goes to the main swale, which might be why that one would be maintained by the council?

newbuildnightmare

daveyjp said:

Having a further dig around the documents the plans and drainage detail suggest this is a swale serving a wide area of the development.  Large areas of the highways, footpath and over 20 parking spaces.

Planning doesn't concern itself with land ownership, just land use.  They will be working from the position the swale is a shared facility benefitting the whole development and whilst legal ownership of land may be to one property, the benefit of the swale is for the wider area and development on the swale area is therefore not permitted. 

Hi OK understood
I suppose the only remaining question or area of clarification is where the planners would have made this clear, so the builders solicitor could have made our solicitor aware.  Presumably they have a duty to clarify this at some point in the application process as there is no reference to this condition anywhere?  They still haven't / wont confirm the classification of the land ie C3 etc and they still won't provide proof that there is any form of document on the portal that states the SUDS is a public open space to enforce that we can't use it as an extension of the garden.

They also refuse to clarify that there are any restrictions on any of the other SUDS on the development.  Are they entitled to withhold this or is it their responsibility to prove this if they are trying to enforce the restriction?

Section62

newbuildnightmare said:

daveyjp said:

Having a further dig around the documents the plans and drainage detail suggest this is a swale serving a wide area of the development.  Large areas of the highways, footpath and over 20 parking spaces.

Planning doesn't concern itself with land ownership, just land use.  They will be working from the position the swale is a shared facility benefitting the whole development and whilst legal ownership of land may be to one property, the benefit of the swale is for the wider area and development on the swale area is therefore not permitted. 

Hi OK understood
I suppose the only remaining question or area of clarification is where the planners would have made this clear, so the builders solicitor could have made our solicitor aware.  Presumably they have a duty to clarify this at some point in the application process as there is no reference to this condition anywhere?  They still haven't / wont confirm the classification of the land ie C3 etc and they still won't provide proof that there is any form of document on the portal that states the SUDS is a public open space to enforce that we can't use it as an extension of the garden.

They also refuse to clarify that there are any restrictions on any of the other SUDS on the development.  Are they entitled to withhold this or is it their responsibility to prove this if they are trying to enforce the restriction?

As posted above, generally it isn't the council's responsibility to do this kind of research or provide proof.  It is up to the property owner/applicant to demonstrate what they want to do is lawful.

Sometimes the council will include a condition on the consent requiring the land to be retained for a specific use (e.g. SUDS) only, but the absence of such a condition doesn't mean an alternative use is automatically acceptable.

newbuildnightmare

Section62 said:

daveyjp said:

Having a further dig around the documents the plans and drainage detail suggest this is a swale serving a wide area of the development.  Large areas of the highways, footpath and over 20 parking spaces.

Planning doesn't concern itself with land ownership, just land use.  They will be working from the position the swale is a shared facility benefitting the whole development and whilst legal ownership of land may be to one property, the benefit of the swale is for the wider area and development on the swale area is therefore not permitted. 

Also looks like there is potential for a phase 2 at some point in the future, which may use the same drainage system.

Somewhere I read that the swale parallel to the main road would be adopted by the council, but the one at the side of the OP's house wasn't mentioned there.  The impression I got was the highway drainage goes to the main swale, which might be why that one would be maintained by the council?

Hi There will be no phase two, the land that is to the rear belongs to plot 13 (the house on the far right of the development.  The builder tried to sell us this land when we bought the house but was clear that there was no development allowed on it at all.

daveyjp

The application to discharge the condition relating to the drainage scheme shows the swale is part of development wide drainage system and this is what planning will rely on for enforcement action if they feel your development affects the site wide drainage,.

newbuildnightmare

Thank you for this i greatly appreciate it, so i need to prove that it doesn't effect drainage which I have offered to do with an independent engineers report which they have ignored.  To be honest they have ignored every question i have asked for clarification even down to if the other SUDS on the development are also classed as public open spaces.  I have followed that up with if they cannot advise this, who can within the council.  Again they have ignored that request too.  This includes the principal planning officer in the comms but no response at all.  I don't know where to turn other than the two solicitors and the builder who appear very reluctant to answer any questions in detail.

Section62

newbuildnightmare said:

Thank you for this i greatly appreciate it, so i need to prove that it doesn't effect drainage which I have offered to do with an independent engineers report which they have ignored.  To be honest they have ignored every question i have asked for clarification even down to if the other SUDS on the development are also classed as public open spaces.  I have followed that up with if they cannot advise this, who can within the council.  Again they have ignored that request too.  This includes the principal planning officer in the comms but no response at all.  I don't know where to turn other than the two solicitors and the builder who appear very reluctant to answer any questions in detail.

The engineer's report would probably say there is no significant hydraulic impact on the operation of the swale, but the council's response is likely to be that removing the swale from the public realm and having it behind a 6ft fence means it will be harder to monitor and maintain, and insufficient maintenance would - long-term - have an impact on hydraulic performance.

As an aside, the drainage plans show the foul water drain (which runs under the path at the rear of the houses) is crossing under the swale at the side of your house.  The invert levels of the foul drain and the swale suggest there is minimal cover - maybe about 6 or 7 inches - assuming the drainage is built to plan.  Beware of this if you ever do work in the swale (like digging out silt/mud) as there would be a risk of the foul drain being damaged (and there's no indication the foul drain has protection where it passes under the swale).  Personally I'd want to do some careful trial holes to find exactly where the foul pipe is and confirm the depth, and then put a wooden marker post on each side of the swale as a reminder the foul drain is below.

newbuildnightmare

Hi I have news !!
I have finally had a response from the planning department who state the following and advised us to speak to the builder but also that aside we are still in breach of planning in their opinion.

"Although the affected land was not described expressly on the plans as an area of public open space, it is quite clear that it was intended to be "

This to me is there is no proof at all of the classification of land or they would never have said this on an email.  I have asked again for a meeting where we can discuss and potentially come to an agreement.

To say there was an intention surely is meaningless - everyday i get up and try not to argue with the wife but that isn't a guarantee lol.....any thoughts on this ?

MeteredOut

newbuildnightmare said:

Hi I have news !!
I have finally had a response from the planning department who state the following and advised us to speak to the builder but also that aside we are still in breach of planning in their opinion.

"Although the affected land was not described expressly on the plans as an area of public open space, it is quite clear that it was intended to be "

This to me is there is no proof at all of the classification of land or they would never have said this on an email.  I have asked again for a meeting where we can discuss and potentially come to an agreement.

To say there was an intention surely is meaningless - everyday i get up and try not to argue with the wife but that isn't a guarantee lol.....any thoughts on this ?

Good luck, but I suspect you're fighting an already-lost battle here. Aptly, a bit like trying to argue with the wife

At a minimum, they'll likely be able to enforce you removing the fence parallel to the highway unless you submit, and they approve, a retrospective planning application.