Newbuild Land Dispute Planning Enforcement

MeteredOut

Section62 said:I

MeteredOut said:

GDB2222 said:

MeteredOut said:

If the OP has a case, surely it's against his own solicitor?

What would that claim be? I’ve seen nothing to suggest the OPs solicitor said they could build on the suds area, or remove fences to make it part of their garden.

Not sure it is sufficient for a claim, but in the first post -

The OP said:

...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....

Given a specific request, it would be surprising if the OP's solicitor didn't offer some kind of guidance on the planning situation, or suggest the OP would need to check themselves whether planning consent would be required for building on land which appears likely to be outside the curtilage of the property, and/or on land allocated for a communal use.

Solicitors wouldn't necessarily give planning advice themselves, but if asked to make specific enquiries about changing a fence (including along a highway boundary) on a newbuild development you'd think a solicitor might mention "you'll need to check that with planning", rather than relying on the response from the builder's solicitor.

Agree, we’d need to see exactly what the solicitor “confirmed” and whether that was in writing.

newbuildnightmare

We are going to comply and take the builder for misrepresentation. Going to solicitor on Wednesday. I understand that an AP1 is the document for correcting TP1 mistakes as I’m going down the route of forcing transferring the swales back to the builder through our original conveyancer. 

newbuildnightmare

I’m moving my shed and greenhouse into our garden within the domestic curtilage is there anything I should be aware of planning wise I’m also putting up a pergola I just wanted to run it past you guys as you have been a great help 

anselld

newbuildnightmare said:

We are going to comply and take the builder for misrepresentation. Going to solicitor on Wednesday. I understand that an AP1 is the document for correcting TP1 mistakes as I’m going down the route of forcing transferring the swales back to the builder through our original conveyancer. 

It seems premature to give in to the Planners at this early stage.  Surely it will weaken your case if you have not actually tested their initial view with the Planning Inspector. 

Section62

newbuildnightmare said:

I’m moving my shed and greenhouse into our garden within the domestic curtilage is there anything I should be aware of planning wise I’m also putting up a pergola I just wanted to run it past you guys as you have been a great help 

Check the property still has full permitted development rights.  These can be removed (in full or part) either as part of the planning consent or an Article 4 Direction.

You've probably got nothing to lose by asking the planning enforcement officer you are dealing with if it would be Ok to resite the shed and greenhouse within the original fenced garden - the worst they can do is refuse to answer, or tell you to consider making an application for a lawful development certificate if you want an official opinion.

Section62

anselld said:

newbuildnightmare said:

We are going to comply and take the builder for misrepresentation. Going to solicitor on Wednesday. I understand that an AP1 is the document for correcting TP1 mistakes as I’m going down the route of forcing transferring the swales back to the builder through our original conveyancer. 

It seems premature to give in to the Planners at this early stage.  Surely it will weaken your case if you have not actually tested their initial view with the Planning Inspector. 

But to test it with the planning inspectorate the OP either needs to make the suggested application for change of use, or else wait until the council issues a planning enforcement notice.

As the OP already suggested, the former approach would effectively be an acceptance that the land isn't residential garden, and in considering the council's refusal of the OP's application, the inspector cannot ignore that the land has an essential communal function.  Looking through the planning files there has been a history of flooding in the location, and the nearby residents seem to have strongly opposed the development (including being concerned about flooding), so anything which potentially compromises the effectiveness the drainage scheme is unlikely to pass without some further objection.

Moreover, although there doesn't appear to be anything specific stating the land's status, there are plans from earlier stages of the planning process which tend to support the council's case.  For example on soft landscaping plans the area of the swale is clearly differentiated from the gardens of the dwellings.

A variant on the former approach would be to make an application for retrospective consent for the higher fence (and only this) since this consent would be required regardless of the status of the land.  However, I suspect the application for the fence would be refused on grounds of highway safety, not necessarily the status of the land, so the inspector would potentially only be looking at the highway safety question and not necessarily the land status.

The latter approach (waiting for an enforcement notice) is flawed for the reasons I've already given.  The enforcement notice will almost certainly remain on the property for ever, and may cause problems when the OP wants to sell.  Furthermore, the council has 10 years in which to serve the notice, they don't necessarily have to do it anytime soon.  Which means the OP may not get an inspector's decision in a reasonable timescale, and if they want to sell the property within the next 10 years there is a risk of the planning issue coming up then.

anselld

Section62 said:

anselld said:

newbuildnightmare said:

We are going to comply and take the builder for misrepresentation. Going to solicitor on Wednesday. I understand that an AP1 is the document for correcting TP1 mistakes as I’m going down the route of forcing transferring the swales back to the builder through our original conveyancer. 

It seems premature to give in to the Planners at this early stage.  Surely it will weaken your case if you have not actually tested their initial view with the Planning Inspector. 

The latter approach (waiting for an enforcement notice) is flawed for the reasons I've already given.  The enforcement notice will almost certainly remain on the property for ever, and may cause problems when the OP wants to sell.  Furthermore, the council has 10 years in which to serve the notice, they don't necessarily have to do it anytime soon.  Which means the OP may not get an inspector's decision in a reasonable timescale, and if they want to sell the property within the next 10 years there is a risk of the planning issue coming up then.

I am not sure why a historic enforcement notice would be an issue on sale.  If the appeal was dismissed then the OP would do what they are going to do anyway, ie reinstate the original layout and sue the builder but with a more definative confirmation of the planning position.  The 10 year point fair enough but it seems unlikely the Council would delay further action.

MeteredOut

Section62 said:

newbuildnightmare said:

I’m moving my shed and greenhouse into our garden within the domestic curtilage is there anything I should be aware of planning wise I’m also putting up a pergola I just wanted to run it past you guys as you have been a great help 

Check the property still has full permitted development rights.  These can be removed (in full or part) either as part of the planning consent or an Article 4 Direction.

You've probably got nothing to lose by asking the planning enforcement officer you are dealing with if it would be Ok to resite the shed and greenhouse within the original fenced garden - the worst they can do is refuse to answer, or tell you to consider making an application for a lawful development certificate if you want an official opinion.

Do you actually need planning permission to site a shed or greenhouse in your own garden, permitted development or otherwise?

MeteredOut

newbuildnightmare said:

I’m moving my shed and greenhouse into our garden within the domestic curtilage is there anything I should be aware of planning wise I’m also putting up a pergola I just wanted to run it past you guys as you have been a great help 

One clarification question: did the planners specifically mention the new higher fence in respect to it being parallel to the highway? It'd be good to get clear in your head if the ask for a retrospective request is because of its proximity to the highway, or purely because it surrounds the suds area (and what they regards as open space).

newbuildnightmare

MeteredOut said:

newbuildnightmare said:

My loss is access to land to use as a garden and loss of usable domestic curtilage by cica 75% which will reduce the value of the property. 

That’s just words. If you’re going to sue, you need to prove demonstrable losses. What value do you put on that loss and how do you calculate that? Eg, did you pay more for your house compared to others of the same type on the estate because you own the suds area?

What proof do you have that it will reduce the value of your property? It’s a recent purchase of a new build, so likely would currently be valued less than you paid for it.

I’m going to get 2 valuations with the land as it is now then ask for a value that would apply with everything put back and it being public land.  Also if you take into account my loss of access of space for amenities