Newbuild Land Dispute Planning Enforcement

Section62

newbuildnightmare said:

The lpa say there can’t be any fences around the swale as they are not on the master plan drawing. The bird’s mouth fence that the builder put up is also a breach and not on the approved plan.  I have stressed that as l am the land owner I am liable for injuries risk of drowning in winter etc for the children in the street. I’ve offered to put up a 3ft fence with a gate but they say no.  The swale is not safe without a fence and as I say I’m liable what do I do?

You ought to get professional legal advice on your liability (and the question about making the developer take the land back), but if you might be held liable then it is possible you could reduce that liability by taking reasonable steps to avoid the risk.  For example if you apply for consent for a low fence around the swale and the council refused it, then you may (but you need legal advice here) be able to defend yourself on the basis you tried to do something but the council said 'no'.

On the other hand, the more you say "this isn't safe", the easier you make it for a potential claimant to show you knew about the problem.

Has the developer completely finished on site yet?  One option (to minimise your costs) might be to make a householder application for a non-material amendment to the original planning consent (costs £44) - although the council may say the application is invalid on one or more grounds, but that doesn't matter too much as it is how the council responds which could be the interesting bit.

Bear in mind if you say you need to fence the swale off from the road for safety reasons then you also need to consider how easy it is to access the swale through the land at the front - in other words you should probably put a similar fence up at the front if you deem it necessary to have the one at the back.

Meanwhile, H&S signs are a common goto if there is some concern about liability, and if this is deemed to be public space then it is surprising the developer didn't provide some kind of signage.  Again, there may be a debate with the council about whether you need planning consent to put them up, but if you get a few of these and put them up then you've at least done something to highlight the risk -

Slinky

I feel sorry for the OP who has bought this plot believing they were getting an asset with that piece of land, and it's now looking like a liability.

ComicGeek

Slinky said:

I feel sorry for the OP who has bought this plot believing they were getting an asset with that piece of land, and it's now looking like a liability.

Completely agree. Firstly their own solicitor should have been querying the swale within their land ownership. What the responsibilities are etc, as there is ongoing maintenance required. That would have been enough for most people to rethink the purchase and force the developer to rethink it.

Secondly the OP even asked the right questions about the boundaries and got the wrong answers. I can't believe that the solicitor's/developer's response wasn't just 'talk to the LPA about changing the boundaries, we can't advise on that' - hopefully their responses are in writing, I would be pursuing them for the costs involved with all of the fence installations/removals.

This is exactly why management companies are required in some developments. I've never seen a swale serving a wider development under the ownership of one plot. Particularly as the owner is being prevented from securing the site.

newbuildnightmare

Thanks all - we are devastated. 

newbuildnightmare

@Section62 Hopefully you can advise can you tell me where i will find the document that stipulates how long my driveway should be as it is very short as is everyone's and all cars hang over onto the footpath.  I have a treble drive which i can't get 3 cars on but the main issue is the length of the drive?

silvercar

newbuildnightmare said:

@Section62 Hopefully you can advise can you tell me where i will find the document that stipulates how long my driveway should be as it is very short as is everyone's and all cars hang over onto the footpath.  I have a treble drive which i can't get 3 cars on but the main issue is the length of the drive?

I’d start with the original planning permission for the development that should be on your council’s website. That may say conditions for the individual plots eg requiring X number of parking spaces. Somewhere on that document, or could be elsewhere, should be a minimum size for parking spaces. 

newbuildnightmare

Hells bells i can only find visitor parking dimensions

silvercar

newbuildnightmare said:

Hells bells i can only find visitor parking dimensions

Given both a visitor parking and a residents parking bay would both be expected to fit cars, there is no reason to think they would be different, though a quick call to the council planning department would confirm

ComicGeek

newbuildnightmare said:

@Section62 Hopefully you can advise can you tell me where i will find the document that stipulates how long my driveway should be as it is very short as is everyone's and all cars hang over onto the footpath.  I have a treble drive which i can't get 3 cars on but the main issue is the length of the drive?

Technically there isn't a UK minimum size. A typical size is 4.8m long, but some LPAs have specific requirements in excess of this - Essex requires minimum 5.5m long, for example.

Average saloon/SUV is 4.8m long, so doesn't leave much clearance if there's a fence/wall/house at the front of the parking space.

Section62

newbuildnightmare said:

@Section62 Hopefully you can advise can you tell me where i will find the document that stipulates how long my driveway should be as it is very short as is everyone's and all cars hang over onto the footpath.  I have a treble drive which i can't get 3 cars on but the main issue is the length of the drive?

The size should be as per the original planning consent (or discharge of condition) which means either something on one of the plans, or else described by text in the application or one of the supporting documents.  I've done a quick look through the application documents and can't see the size specified, although it may be there and I've missed it.

If the size isn't explicitly specified in the planning consent then it should be whatever is specified in the council's Local Plan or later supplementary planning guidance (SPG) which was valid at the time consent was granted.  I.e. If the council subsequently changed the standard before the property was built then the change normally wouldn't have any effect on the consent for this property.

If I've got the right council then they adopted a new parking SPD in 2023 which requires driveways to be a minimum of 5.5m long, but as above, it would be a previous version or the adopted local plan which applied in your case.