Council enforcing 20cm setback on loft

[gillere]

Hello,

Looking for some advice. We bought a house just under a year ago which had had a ground floor extension and loft conversion done under permitted development. Around Christmas 2016 the local council planning office got in touch to say they were acting on a complaint made about the loft conversion from a neighbour - we just learnt the complaint was made summer 2015, 9 months before our purchase and 18 months before the council got in touch with us.

After a couple of visits to the house (Jan and Mar 17) for photos, measuring, the council have ordered us to implement a 20cm setback on the loft conversion, within three months.

When we bought the house we used a top quality surveyor (40 years experience etc), good local conveyancing solicitor, building regs approval in place, all checks done etc. All the work done seems high quality (my dad is an architect and surveyor seemed to think so too so odd the vendor messed up on this matter). What I mean is we weren't completely green and did all the checks we could without knowing the ins and outs of planning law! Obv not the surveyor's job to pick up something like this but we're pretty gutted, we now face an expensive bill to put something right that we had no idea about.

We've already asked the council whether we could apply for retrospective permission but they said no as it would set a precedent, they also said don't bother trying to claim the lack of a 20cm setback was done for structural reasons as they are not interested. On the latter point we don't know if that was the case as don't have access to the architectural plans and the vendor is ignoring my messages over the past month.

I admit I feel a bit lost about what to do next and the last thing we want is the expense and upheaval of putting this right (got a young child plus baby due in the autumn).

Any advice on the first steps? If the vendor knew of the complaint (he must have as the council seemed to think they made a visit to the property while building work was going on in 2015) and he didn't declare it in the property information form (he didn't) could we have a case against him? There doesn't seem any point in appealing the council's orders. How can I obtain the plans for the conversion, is that via the council office? Our solicitors didn't advise us to ask for a certificate of lawful development, is that something that would have alerted us to the fact something was wrong prior to purchase?

Sorry it's so long. Thanks.

 

[noseall]

I'd say your first port of call would be to the vendor in that you were shafted. Probably fled the country or summat.

 

[gillere]

Thanks. He is still around as doing other properties in the borough. But how liable would he be - I guess he would say to the best of his knowledge he did it under PD.

 

[freddiemercurystwin]

If the vendor knew of the complaint (he must have as the council seemed to think they made a visit to the property while building work was going on in 2015)

If the vendor works 9-5 then it's quite plausible that the council visit was hidden from them by the builder ....

 

[motorbiking]

Contact your solicitor. The claim will be either against them, the vendor or your surveyor or a combination of all. The complaint leading to the enforcement will have been on file and will result in the vendors statement of fact being false thus their is a claim for damages due to the incorrect information supplied. Council's don't just do this, there will have been a lot of dialogue and if there was no prospect of planning permision they should have issued a stop notice. You should also look at getting a specialist architect to see if you can do something that is acceptable to planning.

However, the first thing to do is meet the planning enforcer and see if you can negotiate an extension. otherwise you'll miss the deadline and they will take you to court adding more cost.

 

[wessex101]

Thanks. He is still around as doing other properties in the borough. But how liable would he be - I guess he would say to the best of his knowledge he did it under PD.

So is the vendor a "property developer"?

The key question is who claimed the loft conversion was permitted development? The 200mm set back is a fundamental requirement and any property developer should be aware of it so I doubt a court would accept the argument that they made a simple error. My money would be on pursuing the vendor.

The solicitor might also be in the frame for not ensuring all the paperwork was in place. Did the solicitor and you just accept the word of the vendor that it was permitted development?

The surveyor has been a bit of a muppet for not spotting it but they probably have a clause in the survey that all building work should be checked by your legal representative to establish all statutory legal permissions are in place. He should have known it wasn't permitted development but might have thought it had planning permission subject to your further enquiries.

Your father as an architect could also be in the frame if he gave advice as he owed you a professional duty of care even if he wasn't being paid, but probably not a good idea to sue your own father.

Nasty situation, I hope you nail the dishonest vendor. (one of the reasons I now refuse to work for property developers, they all seem to be crooked)

 

[^woody^]

It's buyer beware. The buyer employs experts to advise them on the sale - the surveyor messed up, and you should also be asking why nothing was picked up by the conveyancer in the search.

You can't prove that the previous owner actually knew anything about this - by your own, and your dad's and advisor's admission, the work is of high quality so there is nothing to suspect that it could have been built incorrectly.

 

[motorbiking]

it does depend how it was described. plus the council would have acted fairly swiftly to a complaint - All you need is some evidence of that. possibly even a statement from the person who made the complaint that he told the previous owners about the problem.

When my neighbour complained about my extension the enforcement team were round the next day checking stuff. they said they'd have advised me to stop work if there was a problem and no prospect of approval.

plans must surely exist for building control?
whoever complained must have been in dialogue with the enforcement team

This doesn't stack up.

 

[wessex101]

It's buyer beware. The buyer employs experts to advise them on the sale - the surveyor messed up, and you should also be asking why nothing was picked up by the conveyancer in the search.

You can't prove that the previous owner actually knew anything about this - by your own, and your dad's and advisor's admission, the work is of high quality so there is nothing to suspect that it could have been built incorrectly.

But the TA6 property information form and similar legal enquiries are legally binding so if the vendor made a false or inaccurate statement then they could be held liable. In this case it should be relatively easy to demonstrate that the loft conversion did not meet the requirements for permitted development and the local authority had contacted the vendor to discuss a potential breach.

 

[Diver Fred]

Ask your conveyancing solicitor for a copy of the 'Searchs' which you paid for, a good one will keep such records evan though he may have forwarded them to either yourself or more likely the mortgage company. Included in those search's there should be reference to any notices by the council. If the search's results from the council did not include information on the notices then the council are equally at fault.

Good Luck!

 

[gillere]

Thanks all. I'll read these in detail later. Good tip about the searches, I have the search results in a file. So a complaint by the council to the property owner should show up in the searches done during conveyancing?
It seems such a minefield. We bought the house in good faith thinking we had done all the right checks and everything possible only to find this has happened.
Also on the surveyor, I think his job is to check for damp, structural issues and not the minutiae of planning law, no?

 

[^woody^]

In this case it should be relatively easy to demonstrate that the loft conversion did not meet the requirements for permitted development and the local authority had contacted the vendor to discuss a potential breach.

Not unless the council used registered post. Or if visiting, did they speak with the owner or the bloke that was just doing the garden?

The OP would need to prove receipt and knowledge of contact. That is difficult, unless there is aceptable proof.

Did the council actually post it? The previous owner would argue that if they did post a letter, why didn't they follow their own letter up?

 

[^woody^]

So a complaint by the council to the property owner should show up in the searches done during conveyancing?
It seems such a minefield. We bought the house in good faith thinking we had done all the right checks and everything possible only to find this has happened.
Also on the surveyor, I think his job is to check for damp, structural issues and not the minutiae of planning law, no?

The conveyancer should check the planning register, and also ask the planning dept if there are any current enforcement actions. Thats what you are paying them for - to check all the legal stuff.

The surveyor should be checking for any alterations and comment on whether it may or may not require any sort of permission. Thats what you are paying for - to survey the building.

One of the most common (and annoying) things with a sale is that the surveyor and Solicitor invariably ask for proof of planning permission for work which is permitted development. In this case they didn't.

 

[noseall]

One of the most common (and annoying) things with a sale is that the surveyor and Solicitor invariably ask for proof of planning permission for work which is permitted development. In this case they didn't.

You couldn't make it up. I think there is more to this than meets the eye.

 

[wessex101]

The burden of proof is only on balance of probability so copies of correspondence and notes of site visits would probably suffice. But it is hypothetical at this stage, the Council may have no record at all. The important thing would be to demonstrate that the vendor is an experienced property developer (if that is the case) with a heightened expectation of knowledge and experience and not just a member of the public.

As for the surveyors responsibility and expected knowledge of planning rules, they would only be expected to flag up any alterations and extensions etc. and advise the client to instruct their legal representative to make further enquiries.