Help needed please! New build house - 5 months in, find out they don’t have full planning permission

njlj1992

We’re 5 months into buying a new build house. The house is “built” with internal works nearing completion, we were expecting to be in the house in the next few weeks. 

The sale of my old place completed this week and we transferred the deposit to my solicitor (exchange of contracts hasn’t yet happened, we were anticipating this to happen any day). 

With this being a new build, we’ve invested around £7k/£8k in upgrades, all of which developer insisted needed to be paid up front (I get why they would insist this). Alongside solicitor fees, the total investment is nearing the £10k mark. 

By chance, my partner checked the planning permission portal on our new house/wider development and noticed that a portion of brickwork on the exterior of our new house has been refused today. Aesthetically, this was one of the reasons we purchased the property, and concerningly, this is already very much in place. 

Having researched, not conforming to planning permission can cause significant challenges, including enforcement action and future issues selling the property - both of which are making us nervous. I believe the developer will contest this decision, but I’m now pondering on just how long the completion is going to be delayed (currently living with in laws). 

Feeling quite put out as we’ve had to uncover this ourselves and ask our solicitor to put exchange on contracts firmly on hold. We are meeting with the developer on Friday to discuss this issue, and seeking guidance/thoughts/suggestions on how we should be approaching this, and if there are any questions we need to raise that may be make or break? 

Thank you in advance! 

user1977

Well, either they rebuild so it becomes something for which they have permission, or they (successfully) appeal. Or is there another plot which doesn't have the same issue and which you could switch to?

You don't have any rights really, given you haven't exchanged.

silvercar

The builder will have to sort this, one way or another, or they won't be able to sell to anyone.

No doubt they would appeal, given it is already built. Ask your solicitor if it is possible to exchange and complete with the condition that the builder sorts out the issue.

I don't know that saying a major reason for purchases was a section of external brickwork, I imagine if the builder has to change it they will say that you either buy it modified or don't buy.

Section62

njlj1992 said:

...

By chance, my partner checked the planning permission portal on our new house/wider development and noticed that a portion of brickwork on the exterior of our new house has been refused today. Aesthetically, this was one of the reasons we purchased the property, and concerningly, this is already very much in place. 

Having researched, not conforming to planning permission can cause significant challenges, including enforcement action and future issues selling the property - both of which are making us nervous. I believe the developer will contest this decision, but I’m now pondering on just how long the completion is going to be delayed (currently living with in laws). 

...

The outcome is likely to depend on exactly what the refusal is, and why it was refused.

Can you clarify whether it was a refusal for a discharge of a conditions, or for (retrospective) 'material amendments', or is it because there is no consent to build at all?

If the aesthetics of this brickwork is one of the reasons why you chose this property then presumably there is a significant difference between what has been built and what the planners expected to be built?

And how extensive is this portion - are you talking about a whole wall, or a panel, or just some detailing?

daveyjp

The reason for refusal is key.

Local authorities have to make planning decisions.  If info has been asked for and the developer has not responded the application may get refused just to bring the matter to a conclusion, it does not necessarily mean what has been built is unacceptable.

njlj1992

Thanks all. Only the front gable of the house (accounts for maybe a little more than a third) has been changed from the original plans (normal red brickwork to split faced block.) The remainder of the front of the house is rendered white. They submitted this as a non material amendment which I am inclined to agree with but the council doesn’t hence the refusal. 

I wouldn’t say our decision was based “mainly” on the brickwork by any means, but it certainly played a role in our interest in the property as it is very much visually appealing vs the other properties in the development. I guess my concern is if the aesthetic of the house has to change will this have an impact on the overall value of the house (perhaps the outside of the house is less important to some, but it’s quite important to me). 

They have done this as a non material retrospective amendment,  the houses are all very much built, ours is 1 of 5 houses within the development impacted by this decision (according to PP portal, though counting from the site plan I actually think the reality is 11 houses). 

The councils reasoning is that the use of split faced block would detract from the character and appearance of the local area which is predominantly red brick. 

We’ve been on google search and can see their red brick comment is not really accurate, there are many rendered houses and we’ve found two houses in the vicinity that look like they use a similar material to the one being refused by the council (albeit not visually similar in design) 

Section62

njlj1992 said:

Thanks all. Only the front gable of the house (accounts for maybe a little more than a third) has been changed from the original plans (normal red brickwork to split faced block.) The remainder of the front of the house is rendered white. They submitted this as a non material amendment which I am inclined to agree with but the council doesn’t hence the refusal. 

I wouldn’t say our decision was based “mainly” on the brickwork by any means, but it certainly played a role in our interest in the property as it is very much visually appealing vs the other properties in the development. I guess my concern is if the aesthetic of the house has to change will this have an impact on the overall value of the house (perhaps the outside of the house is less important to some, but it’s quite important to me).

At least it isn't a band of brickwork just above DPC level, so there may be options for changing it if the council digs its heels in.

njlj1992 said:

They have done this as a non material retrospective amendment,  the houses are all very much built, ours is 1 of 5 houses within the development impacted by this decision (according to PP portal, though counting from the site plan I actually think the reality is 11 houses). 

The councils reasoning is that the use of split faced block would detract from the character and appearance of the local area which is predominantly red brick. 

We’ve been on google search and can see their red brick comment is not really accurate, there are many rendered houses and we’ve found two houses in the vicinity that look like they use a similar material to the one being refused by the council (albeit not visually similar in design) 

Did the developer say anything to you why they changed the design?

Can you look back to the original consent and see whether the materials were a 'reserved matter', a condition, or if details were part of the original consent?

If it mattered to the council that specific materials were to be used then they may fight an appeal with more effort than if it wasn't such an issue.  With an appeal on matters like this it can sometimes be a coin-toss which way the inspector will go.

The council would say "predominantly" means 'more than half' rather than 'exclusively', a few properties with a different material don't set a precedent.

Are you buying with a mortgage?  I doubt a lender would be happy to proceed where this issue is outstanding, and if the developer decides to go the appeal route you are likely to be waiting several months (perhaps a year) before the uncertainty is resolved.  Could you wait that long?

njlj1992

Section62 said:

njlj1992 said:

Thanks all. Only the front gable of the house (accounts for maybe a little more than a third) has been changed from the original plans (normal red brickwork to split faced block.) The remainder of the front of the house is rendered white. They submitted this as a non material amendment which I am inclined to agree with but the council doesn’t hence the refusal. 

I wouldn’t say our decision was based “mainly” on the brickwork by any means, but it certainly played a role in our interest in the property as it is very much visually appealing vs the other properties in the development. I guess my concern is if the aesthetic of the house has to change will this have an impact on the overall value of the house (perhaps the outside of the house is less important to some, but it’s quite important to me).

At least it isn't a band of brickwork just above DPC level, so there may be options for changing it if the council digs its heels in.

njlj1992 said:

They have done this as a non material retrospective amendment,  the houses are all very much built, ours is 1 of 5 houses within the development impacted by this decision (according to PP portal, though counting from the site plan I actually think the reality is 11 houses). 

The councils reasoning is that the use of split faced block would detract from the character and appearance of the local area which is predominantly red brick. 

We’ve been on google search and can see their red brick comment is not really accurate, there are many rendered houses and we’ve found two houses in the vicinity that look like they use a similar material to the one being refused by the council (albeit not visually similar in design) 

Did the developer say anything to you why they changed the design?

Can you look back to the original consent and see whether the materials were a 'reserved matter', a condition, or if details were part of the original consent?

If it mattered to the council that specific materials were to be used then they may fight an appeal with more effort than if it wasn't such an issue.  With an appeal on matters like this it can sometimes be a coin-toss which way the inspector will go.

The council would say "predominantly" means 'more than half' rather than 'exclusively', a few properties with a different material don't set a precedent.

Are you buying with a mortgage?  I doubt a lender would be happy to proceed where this issue is outstanding, and if the developer decides to go the appeal route you are likely to be waiting several months (perhaps a year) before the uncertainty is resolved.  Could you wait that long?

It seems the developer changed the design as they have successfully built with this style brick in other close by areas (though not within the borough) that were successfully agreed by the council. The brick work has proven to be popular within these developments and they didn't foresee any issues with getting the amended brick style through in retrospective PP. 

The original design was actually by a previous developer from what we can see - this included timber cladding rather than the brick type they used, which is quite odd this was passed but not the brick work selected (driving around the area we can only see one timber cladded building and it's a salon which has recently gone up). Perhaps it was agreed on the rural location and it being in keeping with the greenery/trees in the area?  

The developer doesn't have appetite to appeal unfortunately, they've already gone through 2 rounds to try to get the brick through - first in January and again in July - both unsuccessful. They've been advised taking to appeal will take at least 12 months which isn't palatable for them as it'll result in signficant delays in being able to sell so they are now looking at alternatives: 

1. Tinting the brick in a more red tone as council's pushback is its a predominantly red brick area (easiest route and preferred route for both us and developer) 
2. Go over the top of the brick with either full render or timber (not our preference, but may be only option if council refuses option 1.)

We're quite happy to proceed as originally planned if option 1 is agreed as the house will still look the same visually, albeit a different colour. The issue I raised with point 2 is the brick as it stands adds a unique feature to the property, it's a premium look/feel that will no longer be present. Whilst I appreciate it's only cosmetic and doesn't change the rest of the house I can't help but feel it will have some sort of impact on the overall value - the exterior is what people see from the outset and it definitely added a kerb appeal. We don't want to find ourselves to have made a loss years down the line if we want to sell - problem is how do you quantify the change in value outside of finger in the air or getting a full valuation underway (i.e more money invested). 

We are buying with a mortgage yes, everything was ready to go but I'm not sure how they approved with planning permission remaining outstanding (maybe they don't look to this level until funds are released?) 

Section62

njlj1992 said:

It seems the developer changed the design as they have successfully built with this style brick in other close by areas (though not within the borough) that were successfully agreed by the council. The brick work has proven to be popular within these developments and they didn't foresee any issues with getting the amended brick style through in retrospective PP. 

The original design was actually by a previous developer from what we can see - this included timber cladding rather than the brick type they used, which is quite odd this was passed but not the brick work selected (driving around the area we can only see one timber cladded building and it's a salon which has recently gone up). Perhaps it was agreed on the rural location and it being in keeping with the greenery/trees in the area?  

The developer doesn't have appetite to appeal unfortunately, they've already gone through 2 rounds to try to get the brick through - first in January and again in July - both unsuccessful. They've been advised taking to appeal will take at least 12 months which isn't palatable for them as it'll result in signficant delays in being able to sell so they are now looking at alternatives:

This would concern me a bit.  Developers know the rules and processes, and should have had ample time to ask the council for a (non/)material amendment before they got to that stage of the build.  That they've already tried to get the council to agree on two occasions suggests this is something the council is willing to take a stand over, and perhaps the 'lack of appetite' to appeal is based - at least in part - on advice from a planning consultant that an appeal is likely to fail?

njlj1992 said:

1. Tinting the brick in a more red tone as council's pushback is its a predominantly red brick area (easiest route and preferred route for both us and developer) 
2. Go over the top of the brick with either full render or timber (not our preference, but may be only option if council refuses option 1.)

We're quite happy to proceed as originally planned if option 1 is agreed as the house will still look the same visually, albeit a different colour. The issue I raised with point 2 is the brick as it stands adds a unique feature to the property, it's a premium look/feel that will no longer be present. Whilst I appreciate it's only cosmetic and doesn't change the rest of the house I can't help but feel it will have some sort of impact on the overall value - the exterior is what people see from the outset and it definitely added a kerb appeal. We don't want to find ourselves to have made a loss years down the line if we want to sell - problem is how do you quantify the change in value outside of finger in the air or getting a full valuation underway (i.e more money invested).

Do you know exactly what they mean by 'tinting'?  Bricks can be tinted, but effectiveness and durability can vary depending on things like the porosity of the material.  The planners are likely to be alert to the risk of a 'solution' which looks good when first applied, but could be removed or fade back to something more like what the developers wanted to do in the first place.  Make sure the developer isn't intending to do something more akin to slapping red paint over the whole area - this could look very different to what you might be hoping for.

The key here is for the developer to be discussing the options with the planners to make sure the planners can be satisfied.

From your point of view you need to be sure the solution is durable - if the tinting starts to fade/deteriorate then it could end up looking a mess.  Also bear in mind you won't necessarily have the freedom to make future alterations without applying for planning consent yourself.

njlj1992 said:

We are buying with a mortgage yes, everything was ready to go but I'm not sure how they approved with planning permission remaining outstanding (maybe they don't look to this level until funds are released?)

What should happen is your solicitor/conveyancer, being aware there is a planning issue, should inform the mortgage company of the nature of the issue and what is being done to resolve it.  Unfortunately the mortgage company may well decide not to release funds until they have assurance the planning issues have been resolved.

You need to speak with your solicitor/conveyancer to see what they think it means in terms of timescale and wider implications.

njlj1992

Section62 said:

njlj1992 said:

It seems the developer changed the design as they have successfully built with this style brick in other close by areas (though not within the borough) that were successfully agreed by the council. The brick work has proven to be popular within these developments and they didn't foresee any issues with getting the amended brick style through in retrospective PP. 

The original design was actually by a previous developer from what we can see - this included timber cladding rather than the brick type they used, which is quite odd this was passed but not the brick work selected (driving around the area we can only see one timber cladded building and it's a salon which has recently gone up). Perhaps it was agreed on the rural location and it being in keeping with the greenery/trees in the area?  

The developer doesn't have appetite to appeal unfortunately, they've already gone through 2 rounds to try to get the brick through - first in January and again in July - both unsuccessful. They've been advised taking to appeal will take at least 12 months which isn't palatable for them as it'll result in signficant delays in being able to sell so they are now looking at alternatives:

This would concern me a bit.  Developers know the rules and processes, and should have had ample time to ask the council for a (non/)material amendment before they got to that stage of the build.  That they've already tried to get the council to agree on two occasions suggests this is something the council is willing to take a stand over, and perhaps the 'lack of appetite' to appeal is based - at least in part - on advice from a planning consultant that an appeal is likely to fail?

njlj1992 said:

1. Tinting the brick in a more red tone as council's pushback is its a predominantly red brick area (easiest route and preferred route for both us and developer) 
2. Go over the top of the brick with either full render or timber (not our preference, but may be only option if council refuses option 1.)

We're quite happy to proceed as originally planned if option 1 is agreed as the house will still look the same visually, albeit a different colour. The issue I raised with point 2 is the brick as it stands adds a unique feature to the property, it's a premium look/feel that will no longer be present. Whilst I appreciate it's only cosmetic and doesn't change the rest of the house I can't help but feel it will have some sort of impact on the overall value - the exterior is what people see from the outset and it definitely added a kerb appeal. We don't want to find ourselves to have made a loss years down the line if we want to sell - problem is how do you quantify the change in value outside of finger in the air or getting a full valuation underway (i.e more money invested).

Do you know exactly what they mean by 'tinting'?  Bricks can be tinted, but effectiveness and durability can vary depending on things like the porosity of the material.  The planners are likely to be alert to the risk of a 'solution' which looks good when first applied, but could be removed or fade back to something more like what the developers wanted to do in the first place.  Make sure the developer isn't intending to do something more akin to slapping red paint over the whole area - this could look very different to what you might be hoping for.

The key here is for the developer to be discussing the options with the planners to make sure the planners can be satisfied.

From your point of view you need to be sure the solution is durable - if the tinting starts to fade/deteriorate then it could end up looking a mess.  Also bear in mind you won't necessarily have the freedom to make future alterations without applying for planning consent yourself.

njlj1992 said:

We are buying with a mortgage yes, everything was ready to go but I'm not sure how they approved with planning permission remaining outstanding (maybe they don't look to this level until funds are released?)

What should happen is your solicitor/conveyancer, being aware there is a planning issue, should inform the mortgage company of the nature of the issue and what is being done to resolve it.  Unfortunately the mortgage company may well decide not to release funds until they have assurance the planning issues have been resolved.

You need to speak with your solicitor/conveyancer to see what they think it means in terms of timescale and wider implications.

Not too sure on the tinting piece, they showed us CGI image of what it would look like but we will ask for further information around the supplier/process so we can research durability if indeed this is an agreed option with the council.

Regardless of the route that happens, we are thinking maybe to ask to get something written into the contract around longer term guarantees on the changes implemented to cover ourselves beyond the 24 months that is currently drafted in. They committed to getting a sample made if the tinting option is agreed so we can check we are happy with the outcome ahead of time, which gives us some level of comfort we won't arrive to site to an eye sore! 

Yes I've spoken with the solicitor and our broker to make them aware of the issue, it seems they are going to engage with the lender to understand impact on the mortgage. Whilst waiting isn't ideal, we do have accomodation to stay in in the interim so whilst it's annoying delays aren't a deal breaker for us. The main deal breaker will be if we can't come to agreement on the revised cost of the house if render or timber are used - with solicitor fees, upgrades and early repayment charges I've incurred with my old lender (they wouldn't lend on the property so I had to exit) we're around £12k down. The developer was due to refund us £5k on completion to cover early repayment charge and a £1500 contribution towards flooring.  I'm really not sure on the position of whether we will be able to fight for these funds or not if we choose to pull out as contracts haven't been exchanged yet. 

Section62

njlj1992 said:

They committed to getting a sample made if the tinting option is agreed so we can check we are happy with the outcome ahead of time, which gives us some level of comfort we won't arrive to site to an eye sore! 

The planners are also likely to want to see a sample before agreeing to it.

One thing in particularly to establish is whether the tint is being applied uniformly over the whole area, or if each individual brick/block will be tinted leaving the mortar self-coloured.  The former is quicker and easier, the latter is more time consuming and requires considerable skill to stop the tint bleeding into the mortar.

The colour and thickness of mortar joints makes a very significant difference to the appearance of a masonry panel - so much so that a change in the supply of sand can make an area of brickwork stick out like a sore thumb.  Thus poor application of tint could leave you with a very odd looking panel of brickwork. (often less of an issue where a deliberate contrast is wanted, vs trying to match one panel to another)