Planning retention liability

Planning retention liability

Postby sharob » Thu Sep 09, 2010 9:08 am

Apologies at the start for the long post.....

My parents applied for PP for a house on their own land almost 30yrs ago. They applied for and got permission to build it 65ft from the road. After that people advised that they should put it further back as it was a large house so finally they built it 155ft back. It didn't occur to them that they should reapply for planning and nothing was ever done about it. As they say now it was a different time back then. 20yrs later they sold the house and nobody ever seemed to discover this lack of planning compliance during the sale.

At the time of the sale an engineer was employed to check compliance, they presume he was employed by the buyer although they knew him as we live in a small town. Is is correct to think tha the buyer would employ the engineer to check this?

That was 8 yrs ago and the man who bought the house is now trying to sell it and has dscovered this lack of planning compliance. He has sent my parents solicitor a letter from his solicitor saying they want compensaton.

What is the legal view on this?

He's a very unpleasant man, possibly if he were nicer and had not caused so much upset in our area they would be more disposed to feeling bad about this but they do not wish to compensate him at all.

Thanks
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Re: Planning retention liability

Postby onq » Thu Sep 09, 2010 10:06 am

sharob wrote:Apologies at the start for the long post.....

My parents applied for PP for a house on their own land almost 30yrs ago. They applied for and got permission to build it 65ft from the road. After that people advised that they should put it further back as it was a large house so finally they built it 155ft back. It didn't occur to them that they should reapply for planning and nothing was ever done about it. As they say now it was a different time back then. 20yrs later they sold the house and nobody ever seemed to discover this lack of planning compliance during the sale.

At the time of the sale an engineer was employed to check compliance, they presume he was employed by the buyer although they knew him as we live in a small town. Is is correct to think tha the buyer would employ the engineer to check this?

That was 8 yrs ago and the man who bought the house is now trying to sell it and has dscovered this lack of planning compliance. He has sent my parents solicitor a letter from his solicitor saying they want compensaton.

What is the legal view on this?

He's a very unpleasant man, possibly if he were nicer and had not caused so much upset in our area they would be more disposed to feeling bad about this but they do not wish to compensate him at all.

Thanks


Apologies to the site owner if I'm speaking out of turn, but I want to make sure nobody unwisely answers this one.

Firstly, this isn't a legal forum.
You might be better advised to pose your legal questions on a forum such as the http://www.askaboutmoney.com forum.
There are four sub-forums forums over there dealing with specific legal issues
  • Askaboutlaw - For legal issues not covered elsewhere.
  • Ask about Conveyancing in Mortgages forum.
  • Ask about Road traffic law in Cars & Motoring.
  • Ask about Tenant issues in Property Investment.
Even so, its not clear whether this should go in Askaboutlaw or the Mortgages forum.
Stick it in Askaboutlaw and ask the mods to direct you might be the best bet.
There is also a separate planning forum but don't post in both.

There may also be other legal sites of which I am unaware that could better deal with your question.

---------------------------------

On the planning side there are some obvious issues several people here are competent to advise you on this.

Relocating a house 90ft definitely requires permission, as does varying the associated drainage and extending the driveway.

If the relocation and driveway variation materially affected
- the approach to - or
- the location of -
...the entrance, this may also have required permission.

If the relocation of the house -vs- its drainage sustem
- compromised its separaration distance from the septic tank, or
- brought the septic tank closer to the well [if there is one or both, you didn't say]
...then this may also have required permission.

There are other issues including interfering with a listed view or being to close to an area of special amenity or conservation that could similarly affect matters today.
I'm not sure they would have applied thirty years ago, but equally there may have been still other matters in the Development plan at the time that might have been compromised.
A forums like this is too remote for a defintive set of questions, much less a defintive answer.

However all these possible issues end with the same question - what is the remedy?

Thirty years ago predates most of the planning laws I am familiar with.
However, I seem ot recall that the 1994 regulations gave a five year period of grace to local authorities in which they could take enforcement action.
This was based on a High Court decision relating to an advertisement hoarding if I am not mistaken which issued several years previously.

If your parents house was never the subject of an enforcement file, letter or action, the Council were probably precluded from taking action against it five years after it was completed.
Even if a file had been opened but no legal action was taken or if taken, concluded, then its is possible that too much time has elapsed for the Council to take a successful action to "remedy" matters.
The completion date of "nearly thirty years ago" is also well outside both the 7 year [if built without permission] and 12 year [it built with permission but non-compliantly] timeframes for taking enforcement action under the current planning laws.

So its looks like it may not be actionable by the Council, which means they cann take action against the purchaser either.
And if no material matter regarding drainage or road access or anything else caused a continuing risk, health issue, reduction in amenity, or other liability, what is the purchaser's loss?
The fact that the purchaser has had eight years in which to enjoy/ familiarize himself with the property yet did not raise the matter may not support any legal claim he might bring.
While he can claim he has only recently discovered the matter, it may be that any act or omission your parents might be held liable for may relate to the prevous dealing.

Whether he can successfully take a legal action against you or your parents and cost them money mounting a defense is another matter.
Caveat emptor - buyer beware - often applies, but a simple appliction for retention may avoid unnecessary grief.
An alternative could be to ask a competent person to write what's known as as "letter of comfort".

See you on the legal forums.

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Re: Planning retention liability

Postby millennium » Thu Sep 09, 2010 10:16 am

Firstly, if the purchaser of your parents' house want compensation from anyone they should try their own Solicitor, used by them for the conveyancing. Solicitors normally ask for an Opinion on Compliance with Planning from the vendor, before agreeing to close a sale.
Secondly, as the vendor has chosen not to act for over six years in relation to this problem the Courts may take the view that this is "statute barred" and no legal action can be taken. Finally, the local authority, in whose area this house has been built, are precluded under the Planning Acts from requesting that an illegal structure is removed, after the passage of time.
I suggest you get your parents to instruct their own Solicitor, preferably the one that acted from then in the sale, in communicating the legal position to the new owner.
The words Caveat Emptor come to mind - Let the Buyer Beware!
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Re: Planning retention liability

Postby sharob » Thu Sep 09, 2010 10:25 am

thanks both of you for your replies.

ONQ I have posted this on Askabout law.

I agree that the buyer's solicitor or engineer should be liable but I would like confirmation on the time limitation for this kind of thing...

His solicitor is saying that it is unbelieveable that someone didn't know that their house hadn't proper planning. I find it odd too but it is the truth, came as news to them that they should have just gone back and reapplied.
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Re: Planning retention liability

Postby DOC » Thu Sep 09, 2010 12:40 pm

millennium wrote:Firstly, if the purchaser of your parents' house want compensation from anyone they should try their own Solicitor, used by them for the conveyancing.
The words Caveat Emptor come to mind - Let the Buyer Beware!


On a quick read through the above, I would have to agree totally with millennium.

If this issue had been brought to your parents attention when they first sold the house - then fair enough, it would be their responsibility to 'regularise' the situation (by whatever means, whether it be by a retention application or other means).

At this stage I would believe your parents would have no legal obligation with regard to the matter, they sold the house (most likely in good faith) and with sold the problem!

I'd suggest the solicitors letter is just a frightner. If the it's the same solictor who looked after the purchase of the property from your parents, then I'd say s/he's feeling pretty hot to melting under the collar!!!

Your parents should obviously engage a solicitor to respond. Most likey a PFO letter!
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Re: Planning retention liability

Postby Tayto » Thu Sep 09, 2010 2:16 pm

sharob wrote:..........
He's a very unpleasant man, possibly if he were nicer and had not caused so much upset in our area they would be more disposed to feeling bad about this but they do not wish to compensate him at all. ...



Hmm.....Your parents might consider replying to his solicitors letter with a proposition along the lines of offering compensation of say... 20 euros, but only if he offers to mow the lawn to the front and back of the house.
It's nice to be nice.:)
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Re: Planning retention liability

Postby PVC King » Thu Sep 09, 2010 9:08 pm

Add the Statute of limitations to Caveat Emptor and you get a very chancy solicitor to take a fee from the complainant unless the legal enquiries contained clear and intentional falsehoods; in my experience almost all solicitors will for planning queries use the phrase "the buyer must rely on their own enquiries"


Even if the complaint were sustained which seems very very unlikely the compensation would be limited to that payable on the date of the sale as per the Greystones case of the landlocked site.
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Re: Planning retention liability

Postby onq » Sun Sep 12, 2010 9:02 pm

PVC King wrote:Add the Statute of limitations to Caveat Emptor and you get a very chancy solicitor to take a fee from the complainant unless the legal enquiries contained clear and intentional falsehoods; in my experience almost all solicitors will for planning queries use the phrase "the buyer must rely on their own enquiries"


Even if the complaint were sustained which seems very very unlikely the compensation would be limited to that payable on the date of the sale as per the Greystones case of the landlocked site.


Would you mind posting a link to that PVC King, if you can?

TIA

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