Received an 'Alleged Breach of Condition' from Council Planning Control - Help!

[AJ1983]

Hello, we've received a letter outlining a breach of condition regarding planning that was taken out 2 years prior to us buying the property.

In a nutshell:

Before we bought the house, the owner obtained planning permission to build a dwelling on the land belonging to his existing property. One of the conditions for the new build was that both properties were to have on site parking in the form of a shared drive leading up to individual garages.

He then sold the piece of land where the new property was to be built. The house was built by the buyer who followed the plans, but only on his property and land and not on the neighbouring property (Our house), which was to also have alterations as detailed in the planning (driveway & garage). Before the new house was completed the owner of the original property sold it to us, and we have lived here for nearly two years before receiving this letter from the council.

Our reply to the letter was;

"Dear Ms XXX,

We have received your letter regarding the above alleged breach of planning condition.

At the time the planning permission was granted the property of 22 Main Street was owned by Mr XX. He sought planning permission to build a second dwelling on the garden of 22 Main Street as detailed in the permitted plan.

However, after having permission granted, he sold off part of that land, now called 22A Main Street. The builder that bought that land built the house as described in the plans, but as he was not the owner of 22 Main street, he did not carry out the remainder of the plan, to erect garages and access at 22 Main Street. I do not understand how the planning permission could still have been applicable when the builder didn't own part of the land to which the plans referred.

Our seller did not build that garage or access on 22 Main Street, and he subsequently sold the property to us shortly before 22A was completed. Our solicitor did not express any requirement for us to carry out the part of the plans that fell on our land.

I would like you to clarify the legal position here. As far as I can see, the builder chose to carry out the part of an approved plan that fell on his land but not the part of the plan that required there to be garage and access to 22 Main Street (Impossible, as he didn't even own the land). This letter suggests that because he chose to do that, we are now obligated to build something on our land? Because somebody moved into that house? I cannot understand how we can be legally obligated to do so? Surely the planning permission became null and void as soon as the land was divided?

I do hope that I have managed to communicate the situation effectively. It may be helpful for me to explain this over the phone or in person. Please can you get back to me as soon as possible regarding the legality of this situation? It is, of course, a little worrying to be suddenly told that we must lose part of our land and finance a building project just because the builder on the adjacent land decided to build something.

Kind Regards

X"

The reply we received just basically asked that we meet and talk about how we'll meet these conditions.

The conditions clearly stated that the new dwelling can only come into use when all of the planning conditions are met, so as they have not been met and if we refuse to have work carried out will it effect us or the people in the new dwelling (they have been living there for a year now)?

Ps. The plans for our property are horrendeous, a complete afterthought to the new dwelling. Even though we have to give the neighbours access to their garage via our driveway, the plans show that half the length of our garden would be turned into a drive with bits of land rendered useless around it.






Any help appreciated, thank you!

 

[^woody^]

To which property was the planning permission granted?

If it was to yours, then you are responsible for it now.

This should have been checked and addressed at the time of the conveyance. One of the few times when indemnity insurance would have been a good idea.

Get some legal advice about whether you can claim back any costs you will incur from your conveyance advisors or from the previous owner. Plus, this could be an awkward legal situation if this requires the owners of the new house to give up some of their land to meet your planning condition.

 

[Nakajo]

What's the date of the Planning Permission? As I understand it, the enforcement action appears to belong to the neighbouring property - I have a feeling that this might be an ill-thought through and illegal Planning Condition - after meeting with the enforcement team, seek professional advice if they persist in their action

 

[^woody^]

I have a feeling that this might be an ill-thought through and illegal Planning Condition

Off road parking conditions are almost always valid conditions

 

[Nakajo]

But the condition is an occupancy condition. It does not prohibit the sale of the property. Also, I'm confused about the address, which is cited as 22, but is plainly nos. 11 and 11 a ?!?

 

[oldbutnotdead]

That's a very interesting problem.
First thought- have you got legal expenses cover with your household insurance? If yes then get on the phone to them right now (before you meet the council).
Second thought- have you still got the vendors' questionnaire? Have a read, see if the questions regarding planning permission, boundary changes, alterations etc have been answered fully and honestly (if not then your legal team will be collecting from the vendor, if they can find him)

Third thought- it is the builder of the new house who has built it not in accordance with the planning permission so any enforcement action should be taken against them (ie your neighbours). From what you say you have not enacted any element of the permission so it is hard to see why you should be punished for the breach of conditions.

Fourth thought- that driveway sharing bit should have appeared on your title deeds from the Land Registry. If it doesn't then you don't have to share your driveway, if it does and your conveyancer didn't spot it or didn't think it was important then that'll be fairly negligent of them.

Don't think it is a hopeless situation by any means (and I can see why you wouldn't want to lose most of your garden) but definitely one for professional advice, I personally think your neighbour has the problem since they stand to lose their home.

 

[^woody^]

But the condition is an occupancy condition. It does not prohibit the sale of the property.

The sale of property does not have any connection with planning permission or conditions. It's a private contract.

In granting permission for a new house, with additional vehicles to affect the local roads and residents, the planners are right in their attempt, via condition, to ensure that vehicles are parked off the road. So it is a legitimate condition for the granting of the permission. What arrangements sellers and buyers make in the sale to meet any planning conditions is up to them.

This should have been picked up by both buyers before purchase, but more so the OP.

 

[^woody^]

it is the builder of the new house who has built it not in accordance with the planning permission so any enforcement action should be taken against them

The person to whom the planning permission is granted is responsible for any breach of the permission. This obligation is then passed on to any subsequent owners of the property.

What the OP would have to do is sue the builders for any negligence in not following the condition, but negligence would have to be proved.

But as the OP has no contract with the builder, she can't sue them.

 

[Nakajo]

But which property?

 

[^woody^]

But which property?

Thinking about it, it would probably depend on who enacted the permission.

If the previous landowner who applied for the permission then built the house before selling, then he would be responsible. But if the applicant sold the plot for others to build (and that was all formalised before work started) then it would be the owners of the new plot to which the application applies who would be responsible.

However, I suspect that because the application actually mentions building the two garages, one of which is on the OP's land then the application, and obligation for the condition remains with the owner of the original house.

 

[oldbutnotdead]

The person to whom the planning permission is granted is responsible for any breach of the permission. This obligation is then passed on to any subsequent owners of the property.

What the OP would have to do is sue the builders for any negligence in not following the condition, but negligence would have to be proved.

But as the OP has no contract with the builder, she can't sue them.

And that's what makes it interesting- to that extent the obligation would surely have to be shared between the OP and his neighbours since the original plot has been split. Looks to me as if the owner of the original house has pulled a bit of a flanker- inflated the price of half his garden by selling it with planning permission and inflated the price of his house by not turning his remaining garden into a car park (as required if anyone wanted to live in the new house) before selling it (at what I suspect looked like a bargain price at the time but in the light of the car park sketch was probably over the odds). Would love to hear more about this from the OP especially what was declared on the vendor pack.

And I wonder what enforcement action the council are contemplating- only planning enforcements I've ever heard of involved restoring the site to the state it was in before the disputed development was constructed. Which would mean demolishing 22A and associated garage etc. Do the planners (in these circumstances) have the power to compel anyone to build?

 

[^woody^]

Yes, the seller does seem to have pulled a fast one.

I doubt demolition would ever be an option, but any court order down the line would be for the condition to be met.

 

[noseall]

What the OP would have to do is sue the builders for any negligence in not following the condition, but negligence would have to be proved.

...Or mebbe sue the conveyancing solicitor?

 

[^woody^]

What the OP would have to do is sue the builders for any negligence in not following the condition, but negligence would have to be proved.

...Or mebbe sue the conveyancing solicitor?

There are quite a few parties involved, and it's not clear who could possibly be responsible/negligent, but it should be basic stuff for the conveyancer to check that all conditions met and necessary consents were in place for a new build, or any undeveloped plot.

 

[chappers]

The problem here is that the application stays with the land to which it was granted, which at the time was single parcel of land so the OPs land still has an obligation. Whilst the developer can't just build on the OPs land without their permission.
However the requirement would only come into force once the second dwelling was built, so to comply with the occupancy conditions I would have expected the developer to have footed the bill as the legality of his development depended upon the works as a whole being completed.
How this resolves itself may depend on any enforcement the planners are taking against the owners of the new dwelling, for example if they are enforcing the no habitation condition then the developer may have no choice but to stump up the cash to do the works or else demolish his property as without it the OP has no obligation for the new driveway.
But as pointed out, from the OPs point of view. The real fault lies with their solicitor who should have pointed out the issues with the planning conditions.
Negotiation with the developer and the planners is the best way to solve this. If it goes to court it could get very messy and expensive.