Buying new build and discovered planning hasn't been discharged.

mistaoononymous · 8 October 2017 at 11:29AM

Hi

We are almost three months into buying a new build only to discover through our own enquiries with the council that one of the conditions of planning was never discharged prior to construction. The planning was originally conditionally granted four years ago with the stipulation that construction should not begin until all conditions were discharged. We have spent hundred of pounds on solicitor fees, surveys and the valuation and feel that the estate agents under the Consumer Protection Against Unfair Trading Regulations should have advised us of this in the first instance. We, nor do we feel anyone else would ever enter into such a fraught house buying process had we known this. Does anybody have any experience of these issues and able to advise us as to what we should do. Any help is greatly appreciated, we are at the point of pulling out of the sale and obviously extremely stressed as this would mean us having to take out another six month rental agreement causing us to lose thousands.

tealady · 8 October 2017 at 11:43AM

What was the condition?

mistaoononymous · 8 October 2017 at 12:05PM

It was a condition that an investigation and report be made on possible contaminated soil and remediation. The report was required to be submitted to and signed off by the local authority prior to any development. A report has now been submitted last week, but it wasn't made until May this year, four years after the decision letter.

k3lvc · 8 October 2017 at 12:08PM

And has anyone else raised this as an issue or are you clutching at straws for a get-out clause ?

Assuming the report has now been done what's the issue ?

mistaoononymous · 8 October 2017 at 12:19PM

We are absolutely not looking for a get out clause, the issue only came to light as the seller's solicitor had told our soicitor that they had already sent proof that the condition had been discharged. The fact that they hadn't made us suspicious so we contacted the council and were told that we had been misinformed. We had been planning to exchange contracts this week, I had transferred the deposit into my solicitors account and signed the contract in preparation for this before we learned about the planning. The report has been submitted but due to the timeframe from the planning letter as well as the fact that the developer has contovened the stipulation that the report was submitted and approved prior to construction means the council may not even consider the report. We have also been advised that the council may take up to eight weeks to even assign the report to an agent. The timeframe would mean we would have to take out a new lease losing is thousands.

Davesnave · 8 October 2017 at 12:47PM

Isn't your claim more against the developer than the agent?

The agent isn't supposed to mislead, but they wouldn't have access to all the paperwork, and as you've seen yourself, the vendor's solicitor seems to be giving dodgy information to people, possibly on the instructions of the developer.

Are you still happy to go ahead and buy? If so, would a financial consideration via the final price not be a better way to go, rather than through the courts?

mistaoononymous · 8 October 2017 at 12:59PM

This is what I don't know. The Consumer Protection Against Unfair Trading Regulations state that the estate agent is required to inform the buyer of any problems they should reasonably be expected to know. Given that it was only a quick call to the council to establish that the property did not have planning permission I would suggest that they could be deemed as not having carried out due diligence. We are also wondering if the council is partially at fault since their building control signed the building off without planning permission, but I am clearly no legal expert. In terms of trying to recoup against the developer; in this instance the developer is not a national building company but a husband and wife who clearly didn't know what they were doing in terms of the legal side of things.

Davesnave · 8 October 2017 at 1:08PM

You are suggesting that agents should ring the council and check that all the newer properties on their books have planning permission?

I'm not sure that this ever happens.

Edited to add that the Planning Dept and the Building Regulations sections of a council do different jobs and don't usually share staff or necessarily communicate with one another unless a specific reason is highlighted.

mistaoononymous · 8 October 2017 at 1:46PM

Honestly, yes, I don't think it's too much to ask that an estate agent makes a five minute phone call to determine that what they are selling can legitimately be sold. Without planning having been discharged lenders will not and cannot be expected to provide a mortgage.

Davesnave · 8 October 2017 at 1:53PM

mistaoononymous wrote: »

I don't think it's too much to ask that an estate agent makes a five minute phone call to determine that what they are selling can legitimately be sold..

The job of proving that a property can legitimately be sold is that of the solicitor. It takes more than a phone call, because much more than just the existence of planning permission is involved.

Arguing that the EA should have done part of your solicitor's job, probably isn't the best way forward for you.

ProDave · 8 October 2017 at 2:00PM

Contact the planners. Explain the situation, and ask for a letter of comfort that they are happy that all planning conditions have been complied with and no enforcement action will be taken.

Make sure the vendor knows you will not exchange until you have that letter.

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Buying new build and discovered planning hasn't been discharged.

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