Need an expert to verify planning compliance of new build

tawfeeredux

I got a friend of mine, an architectural technician, to do the snagging on a newly built house that I have contracted to buy in a development that is being built in phases. Aside from a few small cosmetic and technical issues that were easily fixed, I noticed what I think is a planning irregularity with the property. When I brought it up with the arch tech, he admitted he wasn't sure.
I got in touch with the planning office in the local county council, but they seemed reluctant to provide any concrete advice without seeing the property. It seems I would need to formally make an application to the council for a Section 5 declaration to see if the property complies with planning regs. I'm not sure I really want to involve the council, and anyway having looked at the application form for the Section 5 it looks more appropriate for the seller of the property to fill out. What I'm wondering is if there's an independent expert who can look at the property and advise if they think it's compliant, and if so, what sort of profession I should be looking for?

BryanF

Very disappointed that the arch tech couldn't handle this? Did he not offer to figure it out? Or are you looking for a Second opinion? Would he not recommend someone?

Do you want to elobrate on what the non-compliance is?

Metric Tensor

Why don't you describe the problem here? A number of people who frequent this forum have very in depth knowledge of the planning system.

There is no specific qualification in planning compliance but in most areas you will find people trading as planning experts - some are experts, some are chancers so your mileage may vary! They may have architectural, engineering or planning qualifications ... or none at all. Experience and knowledge of precedent is important.

Whether or not something specific is in compliance or not is decided in the courts so if you want to take it to the mountain a senior counsel specialising in planning backed up by a team of technical experts would be the goal standard but would cost you more than the house!!!!

tawfeeredux

This is the problem:


This is the view looking out from the back of the property that we have contracted to buy. The property that backs on to this was built in a previous phase of the development (actually the property we're buying was originally part of the same phase but building stopped before they got to ours when the downturn happened).

Sometime in the last 2-3 years (I know this from Google Earth historical images), the owners of property backing onto ours built a structure in their back garden which uses the boundary wall between the two properties as the back wall of the structure. They built the boundary wall up from a height of 1.8m to c.3m. A sloping roof extends from the top of the boundary wall down to a lower point within their back garden, see below:



What I'm trying to clarify is what, if any, regulations are applicable here. Looking at the Planning & Development Regulations 2001 (as amended), it seems Class 1 is not applicable as the structure is not attached to the rear or side of the house.

Class 3 & Class 5 is where the difficulty is. Class 3 refers to the construction of a shed (among other things but the developer advises it's a shed) that is constructed, erected or placed within the curtilage of a house, and allows for a height of 4 metres in the case of a pitched roof. Do the words in bold imply that the shed should not include the boundary of the curtilage? Because the boundary wall has been used in the structure does that mean Class 5 comes into play, i.e. the construction... within or bounding the curtilage of a house of... a wall... the height of which shall not exceed 2 metres?

sydthebeat

its the other property that are in contravention of planning, not this property, as they didnt carry out they work.
The unauthorised development 'serves' another property.

tawfeeredux

sydthebeat wrote: »

its the other property that are in contravention of planning, not this property, as they didnt carry out they work.
The unauthorised development 'serves' another property.

The way we're reading it is that because the boundary wall is equally part of our property and theirs, the fact that the boundary wall is now over 3 metres high also brings our property into contravention of Class 5, regardless of the fact that we or the developer didn't build the wall to that height.

sydthebeat

tawfeeredux wrote: »

The way we're reading it is that because the boundary wall is equally part of our property and theirs, the fact that the boundary wall is now over 3 metres high also brings our property into contravention of Class 5, regardless of the fact that we or the developer didn't build the wall to that height.

no, thats quite an extreme reading of the regulations. Both properties own the boundary walls, but the property that carries out the unauthorised development is the property at fault.
for example if that shed was to be removed, would your property be at the loss of anything?

at the end of the day, if this is a property you are buying, and you are not the seller... its the responsibility of the seller to provide the proper certification.

The_Chap

100% get your solicitor involved and put the onus on the seller to satisfy any queries like this

Metric Tensor

What do you want from the process OP. Are you:

a. Trying to use the "non-compliance" to knock a few quid off the price

b. Trying to use the "non-compliance" to pull out of the purchase

c. Worried about the future resale value of the house.

d. Planning to report your new neighbour for the his possible non-compliance.


If:

a. Just keep saying it to the vendor and see what happens - more than likely you won't get a penny off but no harm trying. Wouldn't be worth your while to pay an expert to provide a written opinion. You'd most likely pay the expert and not make a saving on the house. You might make more progress by saying that the garden isn't as nice as all the others because of the large shed against it.

b. Get your solicitor to ask the vendor's solicitor to provide an certificate of planning compliance from a suitably insured professional that specifically references the rear boundary wall. Wait and see what happens.

c. Compliant or not it devalues your site vs a similar one without the neighbouring shed. This was something you should have taken into account when you originally decided to purchase.

d. Regardless of what is correct legally it wouldn't be a good start in the neighbourhood to immediately report your neighbour for a potential planning non-compliance.

tawfeeredux

Metric Tensor wrote: »

c. Compliant or not it devalues your site vs a similar one without the neighbouring shed. This was something you should have taken into account when you originally decided to purchase.

It's C. if we decide to sell on in the future, we don't want to either (i) have to take a hit on the value of the house or (ii) not be able to sell it at all because the property is potentially not compliant with planning regs.

It wasn't taken into account when we decided to purchase because we didn't know about it. Neither the estate agent when they took our booking deposit, nor the builder when they sent us the contract & subsequently took the balance of the deposit said anything about the wall. We found out about it the day we did the snagging, 7 months after paying the booking deposit. We weren't allowed on site prior to that. The contract said the property would comply with planning regs & because it was in a contract we trusted that would be the case. I can live with the chancers in the other property having their non-compliant shed but i don't want it to reduce our ability to sell in the future.

Metric Tensor

I doubt any "non-compliance" of your property would be an issue for selling onwards - as syd says your reading of the law in that regard seems extreme.

However, there is no doubt, to me, that this shed devalues your property vs the identical property next door that does not have the shed against it.

If this shed was not present when you agreed to buy the house I'd consult your solicitor regarding the legality of your current contract. If you committed to buying something (from drawings) and now what is on site is not what you committed to buy then you may have reason to withdraw from the purchase. Calahonda on this forum posted a link some time back to the legal situation regarding building on a boundary wall. I can't find the post but I think in most cases the owner each side has to agree - in which case the developer would have agreed (probably passively) to this construction and is now selling you a different product to what you originally agreed to buy.

If it was me I'd be kicking up a massive furore about it - but in the knowledge that if this house is anywhere in the east of the country the developer will be able to sell it to someone else pretty quickly so if you really want it you will only get so far.

tawfeeredux

Metric Tensor wrote: »

I doubt any "non-compliance" of your property would be an issue for selling onwards - as syd says your reading of the law in that regard seems extreme.

However, there is no doubt, to me, that this shed devalues your property vs the identical property next door that does not have the shed against it.

If this shed was not present when you agreed to buy the house I'd consult your solicitor regarding the legality of your current contract. If you committed to buying something (from drawings) and now what is on site is not what you committed to buy then you may have reason to withdraw from the purchase. Calahonda on this forum posted a link some time back to the legal situation regarding building on a boundary wall. I can't find the post but I think in most cases the owner each side has to agree - in which case the developer would have agreed (probably passively) to this construction and is now selling you a different product to what you originally agreed to buy.

If it was me I'd be kicking up a massive furore about it - but in the knowledge that if this house is anywhere in the east of the country the developer will be able to sell it to someone else pretty quickly so if you really want it you will only get so far.

I was originally going to post the query in a different way, i.e.
in cases where someone is selling a second-hand property and there's a planning issue, say they've built an non-exempt extension without getting permission, how is that dealt with by the seller? Is it just a case of having to live with having fewer potential buyers as some buyers will have a problem with it & others won't? Does the seller just have to hope that there's at least one potential buyer who doesn't give a **** about planning regs?

What you mentioned about its location (it's in SDCC area) makes me think that this is less of an issue. Unless there's drastic changes in the property market & geographic development of the country in the future, there should always be someone willing to buy this property. As you say, that's probably what the developer is banking on.
While we're annoyed that they've presented us with something we didn't contract to buy, we don't want to walk away & we're not looking for a discount on the price, but we;d still feel more comfortable if we knew that what we're left with doesn't leave us relying, when selling the property ourselves, on the continued willingness of some house buyers in Ireland to look the other way when it comes to planning regs.

sydthebeat

simple question....

are the sellers providing the certification of compliance?

tawfeeredux

sydthebeat wrote: »

simple question....

are the sellers providing the certification of compliance?

Well they're supposed to as per the contract, but they haven't yet. I've asked our solicitor to write to them and ask them to confirm in writing whether or not they can provide a cert, I've a funny feeling we won't get a written response though :rolleyes:.

Metric Tensor

It shouldn't really matter if they respond to a question about "if" they will provide one - they HAVE to provide one before your solicitor will release any more money to them.

But make sure you read the "cert" because I've seen all sorts of provisos overlooked on so called certificates previously by people who should know better!

Metric Tensor

To answer your previous question - if a non-compliance is present then the vendor rectifies it before selling in the vast majority of cases. Either by getting retention or knocking or correcting the unauthorised development.

This is what would apply to your potential neighbour.

The only cases I've seen where somebody's property was non-compliant due to a development on a neighbouring site was when an issue in control of the development's management company was not solved. I think to most sane people (including those in planning enforcement) would consider that if there is a non-compliance present it is on your neighbours property.

tawfeeredux

I appreciate the replies. Just one further question - is the requirement to provide a certificate of compliance just a contractual requirement or is there also a legislative/regulatory requirement?

Metric Tensor

It's not a legal requirement - I.e. a property can exchange hands without a cert of compliance. It frequently happens in the case of auctioned distressed properties.

It would be considered best practice for a "standard" sale though and every solicitor that I know includes it in the contract.

As far as I know it's also a requirement of lending institutions. Are you getting a mortgage?

Angry bird

Assuming there is no planning condition attached to the housing estate removing exempted development rights for garages, the Council Planning Enforcement Section can only take enforcement action v's the neighbour (where the structure is located) providing the shed does not comply with the below, and note it makes no reference to building on or using a boundary wall, i.e. this is not a planning matter but a civil matter.

CLASS 3
The construction, erection or placing within the curtilage of a house of any tent, awning, shade or other object, greenhouse, garage, store, shed or other similar structure.

1. No such structure shall be constructed, erected or placed forward of the front wall of a house.

2. The total area of such structures constructed, erected or placed within the curtilage of a house shall not, taken together with any other such structures previously constructed, erected or placed within the said curtilage, exceed 25 square metres.

3. The construction, erection or placing within the curtilage of a house of any such structure shall not reduce the amount of private open space reserved exclusively for the use of the occupants of the house to the rear or to the side of the house to less than 25 square metres.

4. The external finishes of any garage or other structure constructed, erected or placed to the side of a house, and the roof covering where any such structure has a tiled or slated roof, shall conform with those of the house.

5. The height of any such structure shall not exceed, in the case of a building with a tiled or slated pitched roof, 4 metres or, in any other case, 3 metres.

6. The structure shall not be used for human habitation or for the keeping of pigs, poultry, pigeons, ponies or horses, or for any other purpose other than a purpose incidental to the enjoyment of the house as such.

Dick Dastardly

Does the OP need to be concerned with the build quality - or are foundations for garden walls sufficient to take the additional load here - before the garden settles / wall crumbles.

Bear in mind the shed owners access to that side of the wall is through the OPs house.

Metric Tensor

http://www.irishstatutebook.ie/eli/2009/act/27/enacted/en/print#part8-chap3


Chapter 3 of the link shows what people can and cannot do legally with party walls.

Credit to CH for the link.

tawfeeredux

Angry bird wrote: »

Assuming there is no planning condition attached to the housing estate removing exempted development rights for garages, the Council Planning Enforcement Section can only take enforcement action v's the neighbour (where the structure is located) providing the shed does not comply with the below, and note it makes no reference to building on or using a boundary wall, i.e. this is not a planning matter but a civil matter.

CLASS 3
The construction, erection or placing within the curtilage of a house of any tent, awning, shade or other object, greenhouse, garage, store, shed or other similar structure.

Yes, Class 3 makes no explicit reference to a boundary wall, but it does say "within the curtilage". To my mind that excludes the boundary wall. Compare that to the wording of Class 5 which refers to "within or bounding the curtilage". I spoke with someone in the planning office of the council who also referred to boundary walls being civil, not planning issues which makes me wonder what's the point of Class 5?