Unauthorised building on your property

[angelboy]

Just had a thought - as the outbuilding was not within the curtilage of the neighbour's house....

The curtilage would be his garden anyway. It's not just the immediate land around the house but the whole of his garden as long as it's not a paddock or open land and such.

 

[tony1851]

Just had a thought - as the outbuilding was not within the curtilage of the neighbour's house (unless we are being misled about where the boundary actually is) then it would not have been Class E PD.

Did he apply for Planning Permission?

Might be a way to force him to take it down. Worth a try.

It probably would have needed planning permission.

However, getting the council to take enforcement action is a different matter, as it is entirely at their discretion. They would be unlikely to take enforcement action if it complied with all the rules in Class E, save for going over the boundary.
They would not get involved in what is really a boundary dispute.

 

[joe-90]

I think you'll find that the fence is in the wrong place according to the deeds. Somebody has at some point pinched the neighbors land and he has placed this building there in the HOPE it will go to court where he will wave his deeds around showing that the FENCE needs moving - not the building. Smart move really.

 

[ban-all-sheds]

"Save for going over the boundary" means it is not PD - there can be no question about that. As I see it they have no choice but to get involved. If they rule it was PD then they are ruling that the boundary is where the neighbour thinks it is.

If they say it was not PD then that is because they agree that the boundary is where the OP's friend thinks it is.

Either way, they have to do or say something - if the complainant challenges the building on planning grounds they are going to have to say it's OK, or it's not OK, I would have thought.

If the neighbour is planning to sell, it would be worth the complainant's time to keep an eye on the local estate agents, and as soon as he finds one offering the property sending them a registered letter pointing out that there is an outbuilding without BR approval, without planning permission, subject to all manner of legal challenges, and pointing out that the Consumer Protection from Unfair Trading Regulations 2008 mean that they are required to tell potential buyers about all this. It would cost the OP's friend virtually nothing to do all this, but would put big spanners in the works of any sale.

 

[mfarrow]

We are talking a sizeable brick building about 3m x 4m. One gable end if complete brick, as is the rear wall and the other gable end and front wall are about 6 courses high with a timber frame sitting on top.

Is the building >2.5m high? If so it is not permitted development unless 2m from your boundary.

 

[tony1851]

Either way, they have to do or say something - if the complainant challenges the building on planning grounds they are going to have to say it's OK, or it's not OK, I would have thought.

Actually, the council don't have to say one way or the other.

If a complaint was made, they could write back to the complainer and say;
"yes, they should have applied for planning permission because it may be development partly outside the curtilage...etc etc.....but we are not taking any action as we do not believe it to be in the public interest to do so".

The reason the planning dept won't get involved in this case is that it is essentially a boundary dispute. The council doesn't know where the boundaries are. For all they know, the builder of the extension could turn up with a deed showing that he owned that bit of land, by agreement with the previous owners. The council would then be liable for costs of an appeal if they had issued an enforcement notice on that basis.

No one can demand that a council take enforcement action against any breach of planning law - it's at their discretion.

 

[ban-all-sheds]

Indeed it is.

And somewhere there will be a local newspaper or radio journalist always looking for a way to have a go at the council, who would love to run with the story that the council do not think it is in the public interest to prevent illegal building work.

Then there's the process of complaining about them refusing to do anything about illegal building work to his councillor, to the chief executive of the council, and the ombudsman.

If you take the view that the council are misusing the money they get paid to enforce planning laws and policies by refusing to do anything about illegal building work then a complaint can be made to the District Auditor - councils love that.

 

[tony1851]

Indeed it is.

And somewhere there will be a local newspaper or radio journalist always looking for a way to have a go at the council, who would love to run with the story that the council do not think it is in the public interest to prevent illegal building work.

Then there's the process of complaining about them refusing to do anything about illegal building work to his councillor, to the chief executive of the council, and the ombudsman.

If you take the view that the council are misusing the money they get paid to enforce planning laws and policies by refusing to do anything about illegal building work then a complaint can be made to the District Auditor - councils love that.

How can we be sure that the neighbour's building is actually over the boundary?
Have we seen a title plan? No - and neither has the council.

In taking proceedings for the building not being p.d. solely on the basis that it might not be entirely within the curtilage, the planning enforcement department would be getting involved in a boundary dispute. They could then be accused by other council-tax payers of acting ultra vires and spending rates on what are private issues.

Yes, the local rag can hough and puff, and people can complain to the chief executive. But all the enforcement officer has to say to the chief executive is that there could be a serious possibility of losing an enforcement appeal - and be liable for costs - and he will confirm the decision not to act.

PS; we also have to bear in mind that government guidance on enforcement states that; 'it may not be appropriate for a minor or technical breach where no harm has occurred'. Councils have to go by these rules.

 

[angelboy]

Can you get some pictures for us?

 

[joe-90]

With millions of sheds with beds it's pretty clear you can do what you like.

 

[ban-all-sheds]

In taking proceedings for the building not being p.d. solely on the basis that it might not be entirely within the curtilage, the planning enforcement department would be getting involved in a boundary dispute.

That is now unavoidable for them. And a Mk1 eyeball showing the building crossing what is "obviously" the boundary is enough to show that it is not within the curtilage of the neighbour unless he can prove that it is.

They either deem it PD or not. "Not" would not of course automatically lead to any enforcement, but if they receive a complaint about the building they have to come to some kind of judgement. "We don't know", "We don't care", "None of our business" - none of those are acceptable. If they receive a complaint that a building was put up without PP, what else is open to them except one of:

"It did have PP"
"It did not have PP but did not need it because it was PD"
"It did not have PP and did need it because it was not PD"

I really don't see how they can either just ignore the complaint or say it's none of their business.

They could then be accused by other council-tax payers of acting ultra vires and spending rates on what are private issues.

Building without planning permission is not a private issue.

Yes, the local rag can hough and puff, and people can complain to the chief executive. But all the enforcement officer has to say to the chief executive is that there could be a serious possibility of losing an enforcement appeal - and be liable for costs - and he will confirm the decision not to act.

If the OP's friend can prove that the building is on his land then there is no danger of losing an appeal. It's not a question of damages or compensation for the loss of the land, it's not a question of the guy trying to get an injunction to force the neighbour to remove the building, it is a simple question - is it PD or not.

PS; we also have to bear in mind that government guidance on enforcement states that; 'it may not be appropriate for a minor or technical breach where no harm has occurred'. Councils have to go by these rules.

Theft of land is not a minor or technical breach.

But I've already said that even if they agree that it is in breach of the planning regulations they could well decide to do nothing. But that's when the publicity campaign starts. And that's when adding the fact that the outbuilding has no planning permission is communicated to the estate agent(s) for them to tell prospective buyers.

 

[tony1851]

(Sorry - can't do multiple quotes so will take your points bit by bit).

1.The LPA is under a duty to investigate any complaint of alledged unlawful development. It is not under a duty to do anything about it, even if it finds that there has been a breach. This is because the LPA has to bear the risk of costs if it looses an enforcement appeal. In this particular case, the LPA has no clear evidence that the building has gone over the boundary, because it is not in a position to examine any deed plans. Therefore they will not take on the risk.

So they can perfectly reasonably write back to the complainant saying: 'we have investigated the complaint and agree that there has been a breach of planning control, but we have decided that it is not in the public interest to take enforcement action'.

2. The neighbour does not have to prove anything. Only if the council take enforcement action - and the neighbour appeals - would the neighbour be sensible to put his side of the story to the Planning Inspector.

3. Assuming this building meets all the criteria in Class E (height, area etc), no 'harm' would have been done. Harm in this context refers to harm in a planning sense. The harm that the OP's friend has suffered is loss of 12" of ground, which is a civil matter, not a planning matter. Therefore there would only have been a technical breach of the rules.

 

[ban-all-sheds]

1.The LPA is under a duty to investigate any complaint of alledged unlawful development. It is not under a duty to do anything about it, even if it finds that there has been a breach.

Which I've said more than once, so why do you keep pointing it out?

This is because the LPA has to bear the risk of costs if it looses an enforcement appeal. In this particular case, the LPA has no clear evidence that the building has gone over the boundary, because it is not in a position to examine any deed plans. Therefore they will not take on the risk.

After they have investigated the complaint they will have to reach a verdict on whether it was unlawful or not.

At which point it might be worth a letter to the Borough Solicitor asking if it is council policy that their officers just take the word of someone asserting ownership of something, and don't ask for any proof.

So they can perfectly reasonably write back to the complainant saying: 'we have investigated the complaint and agree that there has been a breach of planning control, but we have decided that it is not in the public interest to take enforcement action'.

Indeed.

At which point the OP's friend begins the adverse publicity campaign and the series of official complaints.

2. The neighbour does not have to prove anything. Only if the council take enforcement action - and the neighbour appeals - would the neighbour be sensible to put his side of the story to the Planning Inspector.

Since making a complaint costs nothing, and agitating over the issue costs almost nothing the OP's friend would be daft not to pursue planning breaches as one of his lines of attack.

3. Assuming this building meets all the criteria in Class E (height, area etc),

If it's not within the curtilage it does not meet all of the criteria for Class E.

no 'harm' would have been done. Harm in this context refers to harm in a planning sense. The harm that the OP's friend has suffered is loss of 12" of ground, which is a civil matter, not a planning matter.

Depends on how much fuss you make over the council not bothering to enforce planning rules, not bothering to check claims that people make. Do Building Control just take a builder's word that he'd put in proper footings, or do they check? Do the planners just take someones word that he's built something the right height, or do they check?

Therefore there would only have been a technical breach of the rules.

It's either a breach or it is not.

 

[tony1851]

An interesting point about this thread is that several posters have chipped in suggesting that the extension be knocked down, or that a gang should be 'hired' to demolish it while the OP's friend is out. Or that the neighbour should be vilified in the local press etc.

But none of us has heard the other side of it, have we?

 

[noseall]

But none of us has heard the other side of it, have we?

No. It kinda sums up a the way a lot of people think on this forum, in particular those lynch mob types that frequent the GD section.