Followed council enforcement’s agreed works, but they later confirmed a planning breach – what options do we have?

[EssexDIYer]

Hi,

Looking for some advice from anyone who has experience with planning enforcement, planning law or a similar situation.

We had an existing conservatory which is 15+ years old which we altered. The depth/ Width was not changed and the size remained. The roof was removed and replaced with a flat roof. The council became involved and we initially submitted a retrospective planning application.

During that process it became apparent that the application was likely to be refused, so it was withdrawn.

We then worked directly with the council’s enforcement team to try to resolve the situation.

The enforcement officer visited the property and we agreed with them what alterations needed to be made. We then spent thousands carrying out those works.

The council subsequently inspected the completed works and we received a final letter confirming that the works had been undertaken in accordance with what had been agreed with the enforcement officer and that the enforcement investigation was being closed.

No enforcement notice was served.

At that point we believed the matter had been resolved. The council knew exactly what had been built, had told us what alterations they wanted, inspected the finished result and then closed the case.

However, that wasn’t the end of it. Further complaints were subsequently made to the council about the property.

As a result, the council carried out a further legal review of the situation. That review concluded that a breach of planning control had occurred.

So we have ended up in a strange position where we carried out works specifically agreed with enforcement, those works were inspected and the enforcement case was closed, but the council later determined following further complaints and a legal review that there was still a breach of planning control.

Despite that conclusion, we have not been required to remove the structure and no enforcement notice has been served.

The work also has Building Regulations certification, although we understand that this is separate from planning permission.

We are now selling the property.

The concern is that there is no planning permission or Lawful Development Certificate for the finished structure.

We’ve also explored indemnity insurance, but insurers we’ve approached so far won’t provide cover because the council has already been involved and is aware of the planning issue.

Our worry is therefore what happens if the buyer’s solicitor or mortgage lender ultimately decides they cannot proceed.

What makes this particularly frustrating is that we didn’t ignore the council.

We engaged with them, withdrew the retrospective application, worked with enforcement, carried out thousands if pounds of alterations they asked for, allowed them to inspect everything and received written confirmation that the enforcement investigation was closed.

It was only following further complaints and the subsequent legal review that we were told there was still a breach of planning control.

We’re trying to work out what our realistic options are now.

If the current sale falls through because of this, what would people suggest we do next?

Would you:

• get an independent planning consultant/planning solicitor to review the entire history?
• approach the council for formal confirmation of their current position and whether they intend to take any enforcement action?
• explore a Lawful Development Certificate?
• make a formal complaint to the council about how the situation was handled?
• look at whether there is any route through the Local Government Ombudsman?
• explore whether there could be a claim against the council if we suffer a significant financial loss after relying on the enforcement team’s instructions?

The main thing we’re struggling with is that we spent thousands of pounds altering the property based on what was agreed with enforcement and received written confirmation that the resulting works were satisfactory for them to close their investigation, yet we’re now potentially left with a property that is difficult to sell because the council subsequently determined that a planning breach still exists.

Has anyone encountered anything similar, particularly where enforcement agreed remedial works and closed a case before the council later reconsidered the planning position?

Any suggestions on what our next move should be would be appreciated.

 

[les_danger]

Out of interest why did the retrospective application look like it would be rejected? Also who's making these complaints about it?

Reading between the lines the principle here is that part of a planning application is about consulting the local neighbourhood as well, so if that's your issue then an LDC will meet with the same issue.

 

[EssexDIYer]

Out of interest why did the retrospective application look like it would be rejected? Also who's making these complaints about it?

Reading between the lines the principle here is that part of a planning application is about consulting the local neighbourhood as well, so if that's your issue then an LDC will meet with the same issue.

This is what was said on the report

The proposed rear extension, by virtue of its siting, massing, and depth would result in an overbearing and overshadowing addition, which would give rise to a high level of visual intrusion, an undue sense of enclosure and loss of light.

It one neighbour and the conservatory existed for 15+ years. The depth/ Width has not changed.

 

[big-all]

"We’ve also explored indemnity insurance, but insurers we’ve approached so far won’t provide cover because the council has already been involved and is aware of the planning issue."

indemnity insurance by its nature requires the council to be unaware off an old situation comming to light as in the council must be unaware off the actual possible problem .....its a bit like trying to take out house insurance to cover something that has already happened like a flood or theft in you at your home

 

[les_danger]

This is what was said on the report

The proposed rear extension, by virtue of its siting, massing, and depth would result in an overbearing and overshadowing addition, which would give rise to a high level of visual intrusion, an undue sense of enclosure and loss of light.

It one neighbour and the conservatory existed for 15+ years. The depth/ Width has not changed.

Hmmm and you've only changed the roof (plus i would have thought going from pitched to a flat roof would have allowed for more light to an adjacent property), but it looks like they're referring to the entire envelope which hasn't changed?

Did the extension have pp when it was originally built over 15yrs ago? If it isn't a neighbour or someone complaining then I don't understand why they're putting this much effort into investigating it.

You're only real course I reckon are the other stages of setting this all out and getting clarification from the council, and if they still don't clarify then escalating. As per the other reply and your own info no point with any sort of indemnity, you're very much engaged with the council now so nothing to lose by talking to them more. Sorry I haven't got anything more useful to add!

 

[endecotp]

At that point we believed the matter had been resolved. The council knew exactly what had been built, had told us what alterations they wanted, inspected the finished result and then closed the case.

I guess you should at that point have applied for retrospective planning permission (again), with the hope that it would be approved. Were you taking advice from a planning professional of any sort during this process?

Our worry is therefore what happens if the buyer’s solicitor or mortgage lender ultimately decides they cannot proceed.

Sell it to someone else who doesn't have those concerns, perhaps for slightly less money.

The question is, how much is the value of the property reduced by these circumstances? Your estate agent may be able to advise on that. Or not, they can be a bit useless on things that are slightly unusual - but ask them, they are supposed to be helping you and this is unlikely to be the first time they've had a property in this sort of position.