My dispute has been ongoing with the council for over 9 months ...

I made a planning application for a conservatory and extension in April 2008 and this was refused. The officer visited me in August 2008 and advised me to build within permitted development. I started work in Sept 2008.

We asked the neighbour if they have any objections and they said no.

The neighbour made a complaint to the planning department in January 2009 stating i was over the limit as i had started after Oct 2008 (the regulations changed, previously i could build up to 70 cubic metres and after i could only go out by 3 metres and i was 6 metres out but near 70 cubic metres). The neighbour is saying i started building in January 2009.

During the building process from Sept 2008 to Jan 2009 the council were publishing on the website and verbally advising me with the guidelines prior to Oct 2008 and telling me i can build up to 70 cubic metres (or 15% of my home volume as stated in legislation though they've never said this). During my call on 27 Jan 2009 they realised their mistake and took the information off. I kept copies of pages and links.

An enforcement officer visited at the beginning of February 2009 and i told him i was within permitted development guidelines as applicable to me (before Oct 2008) and that i had followed their guidance and advice only. He went away.

He then asked me for written statements which i provided from Architect and myself and then wanted these to be affidavit's which i provided from the Architect and 3 other neighbours, stating that they confirm i started work before Oct 2008.

He then stated these affidavit's are not enough proof as the neighbour is giving contradicting evidence and that i should complete a Lawful Development Certificate (LDC) or apply for planning, both of which will get refused, therefore the conservatory will be demolished which is what the neighbours are asking for.

We disputed on this issue for some months and i constantly told them there is no legal requirement for me to complete an LDC (the law says i can do if i wish but not that i must do). They then said we cannot look at your evidence and submission until you complete and LDC application.

The enforcement officer confirmed to a town planning consultant that the evidence i have provided in the form of affidavit's does prove that i started before Oct 2008.

They got enforcement authorisation from the planning committee in June 2009 by stating i hadn't submitted any evidence because i hadn't completed an LDC application.

I had a meeting with the Head of Planning and a few officers and they confirmed that the neighbour had provided no evidence to support his statement and that legislation states i must complete an LDC if there is a complaint. They said there was a transitional period where the old guidelines were being published but have yet been unable to show where the new ones were. They said we'll come to measure up since you keep insisting you're within 70 cubic metres.

They measured and came to 83 cubic metres, which i disputed was wrong. They have now been shown as being wrong because they measured contrary to what legislation states and when this was pointed out to them have now confirmed i am at 70 cubic metres and therefore within permitted under the old rules. They accept they didn't know what the law states. But that i must still complete and LDC as they won't look at my evidence until then. I pushed them to show me the legislation that i must do this and after referring to their legals, they confirm there isn't any. But that i must still complete an LDC.

This has been through stage 1 and 2 of the complaints procedure and a final decision has been given. I complained about being harassed for no reason since i have provided evidence as required. I can now take it to the Ombudsman. In this letter, they apologise for the website and advice being wrong and are sorry for any inconvenience and undue stress caused. They apologise for their measurememts being wrong and any undue stress caused due to this error. They summarised the complaint as "the council failed to accurately measure the size of my extension and pushing me towards applying for planning which they will refuse". But that i must still complete an LDC or they will take enforcement action to demolish the works. Most of the other points i raised over the months have been ignored.

Apart from the many hours i have spent, my planning consultant, architect and legal fees are over £6,000 which they will invoice anytime.

Comments and advice please.

Right.

I see it like this. Regardless of what the Council may (or may not) have published on their website the General Permitted Development Order (GPDO) revisions came into effect on 1st October and (whether or not the Council are therefore responsible for giving you duff advice) the nationally applicable law was therefore altered on that date.

You say you commenced works before 1st October. There is no case law to say formally how Local Planning Authorities should deal with works that were underway at the time of the revisions taking effect. Central Government have provided no advice and, as I understand it, most LPA's are saying therefore that the works must have been "substantially commenced" before this date to be authorised by the old GPDO. So first question - exactly what works had you done before this date and how can you prove this?

Clearly you need to get this resolved somehow. It is unfortunate that your relationship with the Council has deteriorated as I'm afraid it is, probably, with them that you do need to resolve this (ultimately they are the ones that will give you planning permission or similar...). I see there are two ways you could do this by working with them. The first - make the application for the LDC! You don't say why you don't want to do this... Sure you don't have to but if you do then there is an obligation on them to determine it! Providing you can provide enough evidence to prove under which version of the GPDO it was built and that that version authorises it - job done its all over! If they refuse your app. you then get a right of appeal to an independant third party called the Planning Inspectorate who will reconsider the Council's decision.

If, for any reason, you can't provide the evidence the second option is to apply for planning permission. Sure they've told you they'll refuse it but again, if they do, you'll get a right of appeal. A refusal isn't guaranteed just cause they say so initially though... The other advantage of a refused pp app is that they will have to say specifically what is wrong with it - you could then (if you lose the appeal) reapply for something that specifically overcomes their reasons for refusal.

There is a third option... It's a bit more risky and confrontational but you could just say "bring it on!" tell them to serve you a planning enforcement notice! Before they do so they will have to establish (to their satisfaction) that the conservatory is both unlawful and unnacceptable, if they can't they may just go away. The service of a notice will form a registered charge on your land which can complicate future sales etc but it can alse be withdrawn... Anyway there is exactly the same right of appeal against an enforcement notice only it is more interesting in that you can appeal it on lots of different grounds. So in the same appeal you could say that pp should be granted, that it doesn't need pp anyway and that whatever the council are telling you to do is excessive - eg if they say remove it completely you could argue it only needs ammending... This gives you lots of opportunity to get the Inspector to authorise its retention on one ground or another... Should you lose an enforcement appeal however you will have to comply with the notice - to fail to do so is a criminal offence.... It won't necessarily be the notice as served by the LPA that you have to comply with, the Inspectorate can alter any aspect of it even if they do, ultimately, uphold it.

Phew.... Finally - don't panic they can come and demolish it themselves but that's waaaaaaaaay down the line, save the costs issue (and therefore the Ombudsman) for once this is resolved one way or another (and you've got the total bill ) and keep posting - we'll help!

Px

thanks for the reply ...

there's a lot going on here and the council have been changing their statements at every opportunity.

it was already agreed that i have provided enough evidence that i commenced before Oct 2008 because they thought they'd got me by the size. Now that i've proven they didn't know know how to measure up properly, they've gone back and said i need to prove i started before Oct 2008.

i cannot apply for planning permission because it has been refused for a conservatory citing privacy concerns for neighbouring properties, though some of these also have conservatories already. The council advised me to build within permitted development (in Aug 2008) and that's what i've done. I followed their published and verbal advice, which i though quoted national guidelines. Obviously someone didn't know their job, again.

to enforce they'd have to show a breach of legislation. Not completing an LDC is not a breach because there is no law to say i must do one. Yet they obtained authorisation on this. And they've already agreed on the two points, i.e. commencement and size. This leaves them with no case at all. I've asked them on what grounds they will enforce but they refuse to tell me in case it prejudices their case.

now they refuse to look at my evidence stating an LDC is required, yet many months ago they said the evidence is not enough, so obviously they've looked at it. So they may carry on with enforcement by stating no evidence has been submitted, but then i ask the inspectorate to look at it. It will soon become clear there is no case.

as for costs, the council is responsible for the advice and guidance it gives. As a member of the public, i am not meant to know planning laws but look to the planning department for guidance. If this is wrong, then they become negligent which leads to becoming payable for my costs. They have already admitted their mistakes on both counts, i.e. their advice being wrong and them getting their measurements wrong, so there is a start there.

i will take it to the ombudsman while the council is carrying on with whatever they want. The LGO is happy to look into the case. If i win, i am asking for my incurred costs etc. and if i lose, i am asking for my building costs, demolition etc as i followed council advice. I think i have a case on both counts.

thanks.

It seems there are really two issues going on - the dispute with the Council about the service they have provided and the conservatory. Yes if they have screwed up as badly as it sounds absolutely complain.... Unfortunately this does not appear to be getting you confirmation that the conservatory is authorised/lawful. What is their most recent position on this - are they still saying that it's unauthorised? that they're going to serve you?

My advice about the ombudsman etc was to wait on the basis that you won't know how much compensation to claim for (they will ask at an early stage) until the conservatory thing gets resolved - if you end up at an appeal for example your costs will increase. Also should you win an appeal you can make a costs application to the Inspectorate on the basis that the Council have acted unreasonably.

i cannot apply for planning permission because it has been refused for a conservatory citing privacy concerns for neighbouring properties, though some of these also have conservatories already

No - there is absolutley nothing to stop you applying, you make the application they have to determine it. You might know the outcome before you make it, although there are things you could try to alter this, the main point of making an app would be the right of appeal the refusal would give you.

to enforce they'd have to show a breach of legislation. Not completing an LDC is not a breach because there is no law to say i must do one

Absolutely, and sorry if I'm missing the point, but is it not their current position (rightly or wrongly) that the conservatory is in breach? There is nothing to require you to make any application but, as I say, if you do, they have to determine it and you, potentially, get a formal, legal document confirming that the conservatory is lawful. Case closed (except for the ombudsman complaint ).

The advantage, to you, in making either application is that, potentially, this gets resolved without the service of a notice. As I say they do form a charge on your property and appeals can take up to a year. An app takes 8 weeks... Also of course the risk of an enforcement appeal is that you lose and have to take down the conservatory - yes sure you still seek your costs back but wouldn't you rather keep the conservatory and seek different costs?

thanks pink1,

you're right about the LDC application and this is what my planning consultant advises as it seems the council want me to apply so they can get out of the tight corner they're in. There's two pieces of legislation at action here, the LDC and Enforcement and without the first the second cannot be withdrawn.

as i say, planning was refused for privacy concerns and i've built bigger since it was under GPDO, so they say there is no chance it will pass as the same concerns remain.

i was not aware of a charge on the property being made as i thought a charge is only through a court and for money owed to the chargee, in this case i don't owe anything to the council?

the sticking point is now the start date and i a trying to get them to show any reasons why they cannot accept the affidavit's as enough evidence and that unless they prove the people committed perjury, they have no choice but to accept these legal documents. As i said, they did concede on this before but thought they had me on the size and now that i am within my limit, they've gone back on their word and said no.

you're right about the LDC application and this is what my planning consultant advises as it seems the council want me to apply so they can get out of the tight corner they're in. There's two pieces of legislation at action here, the LDC and Enforcement and without the first the second cannot be withdrawn.

Sure it might get them out of a tight corner but it also gets them out of your hair! To be pedantic everything that's happening here is under one piece of legislation - The Town and Country Planning Act 1990 (as amended), just different sections of it... You refer to enforcement being withdrawn - have they served you a notice then? Or just got an enforcement file open?

i was not aware of a charge on the property being made as i thought a charge is only through a court and for money owed to the chargee, in this case i don't owe anything to the council?

There are different type of land charges. Yes some are financial and imposed by Courts but other relate to notices, all different types including planning ones. An enforcement notice remain in effect on the land on which it is served in perpetuity see so it's service and what it requires (and often whether or not it has been complied with) are recorded on the land charges register. That way the requirement contained within the notice goes with the land and the person served can't get out of the notice having to be complied with by e.g. selling it.

Who have you got affidavits from and exactly what works had you done before 1st October? Have you got anything from the contractors - invoices or similar? Can you get anything from the bank showing any payment you made to them? Did you need building regs approval for it? If so when did Building Control 1st come to site? Ultimately, unfair though it may seem, the onus is on you to prove it's lawful and you have to do this "on the balance of probabilities". If there was no evidence to the contrary your, and your architects, word would stand for a lot more than if there is contradictory evidence. Think of it like scales... You have to outweigh whatever the complainants have provided.... Do you know what their "evidence" is?

Who have you got affidavits from and exactly what works had you done before 1st October? Have you got anything from the contractors - invoices or similar? Can you get anything from the bank showing any payment you made to them? Did you need building regs approval for it? If so when did Building Control 1st come to site? Ultimately, unfair though it may seem, the onus is on you to prove it's lawful and you have to do this "on the balance of probabilities". If there was no evidence to the contrary your, and your architects, word would stand for a lot more than if there is contradictory evidence. Think of it like scales... You have to outweigh whatever the complainants have provided.... Do you know what their "evidence" is?

I have affidavit's from 4 neighbours who can directly see the building works carried out, the contractor will also give one also but no initial invoices as Jewson only keep them on computer for 6 months and now can't be bothered to look for them in archives.

I have statements from a solicitor, my architect and planning consultant that the Enforcement Officer stated to them that i seem to have provided enough evidence to confirm that start of work. That was before they were wrong with the volume measurement because of not being aware of what the legislation states about the height figure (highest point as opposed to mean or lowest from a slope or non uniform ground). They simply got it totally wrong and now have backtracked and apologised but want to get me on the start date again.

Only one neighbour has complained (i have a semi) and no-one else. I've been told he has provided contradicting evidence (Enforcement Officer) but also been told he has provided no evidence (Head of Planning). At this meeting my archirect and councillor were also present.

Building Regs is not required for the extention and conservatory. They have been and checked. I only need to apply for the garage conversion as they need to check foundations. But that's not a planning issue.

Thanks.

You still haven't told me what works were done before 1/10/8.... This might help me think of some other "proof" you could try to get....

Ultimately though if the 6 affidavits (4 neighbours, you and the contractor) is all you can get I'd get on and make the application on that basis. It's all very well them saying to you "at officer level" whatever they please, at the end of the day it means little as they can (as you seem to have found out!) just change their mind if they want. When they determine an application though that is the decision of the Council and is legally binding. They have to think a lot more carefully to make sure they get it right.

Also, your appliication file will be a public file and you will therefore be able to view it whenever you want. They will probably do a 21 day consultation excercise during which any third party representations eg from complaining neighbour will go on the file and you will then be able to see what they are saying! If they refuse it you can then look again at getting extra stuff together for your appeal.

Would you pm me the name of the Local Authority please?

thanks pink1,

mostly digging work was done before Oct 2008 as i started in Sept after a meeting with the planning officer in August after he rejected my application but advised me to build it within permitted. The sticking point may be what "start" means exactly. Digging is definately starting. The builder then went away and came back some weeks later. The actual work on the contract started in April 2008 before i decided to make a planning application but that was at the front of the house where i'm doing a boundary wall and driveway. They want to know when the conservatory at the back started.

Since the complaining neighbour hasn't given any evidence apart from making unsubstantiated statements, which unfortunately for me is all he needs to do, they're again misrepresenting facts when they say in writing that he has given contradicting evidence.

I'll PM you later with details.

update .....

now that i've almost won who thinks i'm entitled to my costs (for 1 architect and 2 planning consultants) and compensation (for distress, inconvenience, harassment)?

we're negotiating a settlement to the dispute ...

Via what mechanism have you "won"? Can you give us a bit more information?

i passed it to the LGO and the council now want a meeting to settle and negotiate to stop all action (from both sides).

My costs were incurred only as a result of the department's maladministration, errors, mistakes etc for which they have already apologised in writing from senior management.

Then there is the stress, inconvenience etc that i've gone through.

Had they accepted what i said 10 months ago, i wouldn't have incurred the costs and gone through the stress of 'fighting' them back. Now they're accepted what i have always said, my statements etc never changed.

Absolutley then. If I were you I'd ask for the moon on a stick! At this stage the LPA don't know what the LGO might award you and might well pay up to avoid the LGO having to make a decision...

Still itching to know which LPA this is.... Please?

Ab,solutley then. If I were you I'd ask for the moon on a stick! At this stage the LPA don't know what the LGO might award you and might well pay up to avoid the LGO having to make a decision...

 

Still itching to know which LPA this is.... Please?

Thanks pink1,

I don't want to ask for too much yet i don't want to ask for too little!

The professional fees alone come to around £9,000, then there's compensation for the stress me and my family have been through over tha past 11 months, then there's loss of amenity (loss of use of the extension), and loss of income (not being able to work). And finally the knock on effect within the local community where i've become a pariah of sorts due to the neighbours making this complaint and they and the council harassing me. The police has been involved in a few of these incidents.

I'll let you know the council soon .... but not yet just in case they use this forum.

Hi Tiffo,

I came across your case with the local council regarding them demanding that you legalized you extension via a LDC, I find myself in a very similar position. May I trouble you and ask you a couple of questions regarding your experience and wisdom ?

OK it seems like an eternity ago, but we did all the due diligence on my house extension, Got written clearance from Planning to say it was a Permitted Development, full drawings and approved building regs, a architect did all of this for me.

I paid a builder to dig the foundations and lay new pipe work etc. prior to October 2008, but due to been "skint", did not have it visited until April 2009 for building regs, however a neighbor had complained, and we were both told by the council that because I had started the work it fell into the previous PD regulations, and that I could carry on, its took me until December 2011 to get the foundations in and the walls up, at this point said neighbor complained again, this time the council took his view and threatened me with an order if I did not pull it all down.

After some correspondence and there refusal to tell me why, I got my MP involved who forced them to write to her, in which they stated that they accepted that I carried out groundwork's prior too the 2008 deadline, but it was not substantial, I have since been told that after this letter, they had a meeting with the council legal team, who advised the enforcement officers that they were wrong, and that all I needed to do was prove I started, and the way to do this is via a LDC, they have written to me apologizing and advising me that I need to apply for an LDC, but not admitting that they know I started prior to 2008 directly too me, I still think there wrong - what are your thoughts ? I have a copy of the letter they sent to the MP admitting they knew I had started, a contract with the builder, a paid invoice for the original work - and he will give me an affidavit to say as much.

Personally I think they are going through an arse covering exercise at my expense, because of the complaint, and that if I just built it there would not be a lot they could do ., but I don't want to find out different the hard way.