Selling our house and breached a covenant

[andywuk]

We're currently in the process of selling our house (The day before exchange when this came up!)

We bought the house in 2008, and built an extension straight away under what I thought was Permitted Development.
At the time, I met with the duty officer from the council, discussed our plans and gave him our address, and he said that Building Regs consent was all we needed; so I had no reason to think otherwise. Although, none of this was in writing, of course. The work was signed off without any problems.

We found out we were in a conservation area a year or so later when we needed to have a tree chopped back, and got the correct consents for that.

Now, our buyer's solicitor has flagged up that there is a covenant on our house saying that Permitted Development does not exist for extensions, and we need(ed) council consent.
And typically, we can't wait around to get retrospective planning consent as the buyer's mortgage offer expires at the end of this month, and they've since moved jobs, so can't get another anytime soon.

I understand we can take out indemnity, but that would only cover the cost of removal, so they'd still be left without an extension, and are understandably getting cold feet.

I believe I acted in good faith in asking the council what permissions were needed, if they'd told me at the time we needed planning, we'd have applied for it.

Is there anything we can do to reassure in the timescales available?

Or are our only options:
a) Do nothing, hope the council say nothing, and hope that as it's been 3 years without issue, no will will ever say anything?
b) Get retrospective planning and put the house back on the market, assuming the council actually give us planning?
c) Sit on our hands for a year, until 4 years have passed, and then get a Lawful Development Certificate?

Sorry about the long post!

Thanks in advance
Andy

 

[freddiemercurystwin]

In the first instance I would think it rather more depends on your buyers stance and whether he wishes to take the chance?

a) As they have not done so already, its fairly likely the Planners will do nowt unless they are made aware of it although I do not profess to know the exact process that occurs during a solicitors search and whether somehow this can trigger some kind of investigation. I suspect not though knowing the way councils work.

b) This carries a risk as you're aware, if it is unsuccessful may lead you down a path you really don't want to go down although there is always the appeal process.

c) This is probably a safe bet although may be a pain.

d) Go down the Planning Office and have a really loud rant at the girl on the desk, shout, bang the desk and shake your fists a lot until security drag you away to a nearby Police Van. This probably won't do you any good but you may feel better during your rant.

Have other properties in your immediate neighborhood had extensions approved?

When do you complete?

 

[andywuk]

Thanks

I do like option d)

Buyer seems pretty risk averse, but on the other hand, we think they've just gone self employed, so once this mortgage offer expires, they won't be buying anything for a while - which may strengthen our hand a little

When we had the tree work done, the conservation people came out to review that, and didn't say anything about the extension at that point either. Building control, planning and conservation are 3 different uncommunicative departments at our council - so many different people to shout at.

More than one person I've spoken to suggested that it's never going to be an issue (tempting fate massively!), but that doesn't help us legally!

We've not got a completion date, we were aiming to complete a week or so after exchange, but with that final deadline of the end of the month

There are other extensions around us, but I don't know what permissions they have, or whether they fall in to the rather meandering conservation area[code:1][/code:1]

 

[freddiemercurystwin]

You will (probably) be able to find a map of your conservation area somewhere on your councils website though finding these can be easier said than done, or you could enquire anomalously with your planning department and ask to be directed to the specific link on the site. Or try searching your Councils website from Google rather than the council's often useless search facility.

You will also be able to search online on your Council's website through previous and current planning applications in your area although again some councils systems work a lot better than others, some even have a map facility showing all planning applications.

In reality it will probably never be an issue however, never say never ......................

What is the name of your council and the conservation area you are in?

 

[andywuk]

I did a search of the planning applications myself, and came up blank. Which, given that we'd made one, suggests the search is a bit ropey!

I'd rather not say on here where we are, in case the council somehow got wind, but I don't mind sending you a message with the details, if that's ok?

 

[^woody^]

Are you sure that this is an actual covenant, or is it just and Article 4 directive (removal of PD by local planning dept)?

 

[andywuk]

The solicitor said that there was a covenant attached to the house when it was sold to the previous owners (former council tenants), but the conservation area restrictions seem to suggest PD removal as well

Does that make a difference?
Does that affect whether we can get our certificate after 4 years? Or is that an option for any works on a property anywhere in the country?[/list]

 

[^woody^]

Covenants and removal of PD rights are completely different and one will not affect the other

Whether the covenant is even valid and therefore enforceable will be something that your legal advisor should comment on. Many of these covenants put on ex-LA stock are not enforceable

As for the planning permission, the LA will have to determine if the extension conforms to they conservation policy, and if it does not, is it worth the cost of enforcement - it may not be.

If there is any doubt about whether the extension will get retrospective permission, then you would be wise to wait for the four-year period to expire and then get your LDC.

Any potential buyer would certainly be foolish to take on the risk of an unauthorised extension in a conservation area

 

[andywuk]

The solicitor said the convenant was put in when the house was bought, but the guidelines for the conservation area also seem to restrict some extensions, and suggests you contact the council to find out if your plans are permitted or not - which isn't something I'm inclined to do at the moment!

Does the LDC become a formality regardless of the reasons for needing planning, or does the article 4 directive change that?