Advice on fighting planning enforcement

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    Advice on fighting planning enforcement

    Hi all,

    About 15 months ago a balcony was completed attached to the rear of a side extension on my property. I foolishly did not apply for planning (was a requirement of building regs to have an exit / took bad advice / was a bit nonchalant about it). A couple of weeks ago a chap from the council came round to inform me there had been a complaint etc. I have now received an email, the substance of which reads:

    "I discussed this case with my manager and it has been determined that the balcony area is considered harmful and impacts on neighbour amenity.



    According with Schedule 2, Part 1, Class A, Paragraph K (i) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), the enlargement, improvement or other alteration of a dwellinghouse is not permitted by Class A if it would consist of or include the construction or provision of a verandah, balcony or raised platform.



    Considering the above, in order to resolve this and ensure that the development is considered acceptable with regards to permitted development, you must completely remove the unauthorised balcony by Friday 13th March 2020. Please provide photographic evidence that the raised platform has been removed by this date, so this enforcement case can be closed with no further actions."



    I have already asked for an extension to the time period, which was agreed. Now what I don't really understand is what to do next. As far as I am aware there is no right of appeal until an enforcement notice is served, which would follow the end of the period set by the council to remove the balcony.

    However - the council have told me:

    "The service of an Enforcement Notice is the course of action the Council would wish to avoid, as it would stay on the land in perpetuity and can affect your ability to sell or lease this property in the future. There is a right of appeal to the Secretary of State (at The Planning Inspectorate) against the Enforcement Notice."

    So....I either just follow their decision and remove it or wait till the enforcement notice and appeal, at which point it would remain on the house "in perpetuity"?

    I do think I could successfully appeal, but I am worried that just sitting it out will lead to an enforcement notice that I will never be able to rescind. What happens if I win an appeal and what happens of I do not?

    Many thanks!

    #2
    You could put an appeal, but you may loose. It depends if the balcony is over looking neighbours garden. It just buys you some time. Enjoy it while you can.

    Comment


      #3
      But can I only appeal AFTER the enforcement NOTICE is issued? So what is the email...just kind of a polite "hey, get rid by this date and we won't mess you around." Also, if I appeal I presume the council can take no further action until the appeal has been completed and then have to give me some time to carry out the demolition (is unsuccessful). Finally, surely the enforcement notice would be removed at any time in the future that compliance is met?

      I do of course understand that an appeal can either succeed or fail, that goes without saying.

      Thanks

      Comment


        #4
        I would check with others, but you need to get the ball rolling now. If your appeal has failed, you would need to remove it. The council may or may not write to you again, with a new date.

        Comment


          #5
          I would just remove it.

          Comment


            #6
            Why not ask planning how they would view a retrospective planning application?

            Comment


              #7
              Retrospective planning applications are not generally looked on favourably. but you might succeed if there is a requirement to have a fire exit. OTOH you might find they start questioning if your extension is legal without the fire exit. Probably best to remove it.

              Comment


                #8
                Thanks all. The extension is under permitted development. I'll be seriously considering whether the balcony has any chance of retrospective planning and otherwise negotiating changes to the structure to make it more likely to be accepted for planning. Thanks again for all your help.

                Comment


                  #9
                  This posting had the heading "Advice on fighting planning enforcement" but how could anyone appeal an enforcement notice that shows that a balcony cannot be erected under PD rights. That is an absolute fact that cannot be appealed against.

                  An appeal could be made that such a development could be granted planning permission, but that would require a fee that is twice the amount of a standard householder planning application to the Local Planning Authority.

                  That is why an immediate retrospective planning application to the LPA ought to be considered first before allowing an Enforcement Notice to be issued.

                  Then an appeal against the refusal, if one was issued, would allow an appeal to the Planning Inspectorate at no further cost based on showing that such a development as proposed would not be contrary to local plan policies published by the LPA.

                  The biggest problem is there is nearly always a policy that prevents undue overbearing or overlooking of existing neighbouring properties, that cause an adverse impact on the private amenity area as was explained in the letter sent by the LPA.

                  "I discussed this case with my manager and it has been determined that the balcony area is considered harmful and impacts on neighbour amenity"
                  An appeal against a refusal of an application can be argued that there would be no such adverse impact if it can be shown that would be the situation. The private amenity area is normally the rear garden rather than the front garden, so it may well be that this balcony can never be acceptable if someone standing or sitting on the balcony looks directly into the rear gardens of the immediate neighbouring properties.

                  Comment


                    #10
                    Thanks pilman, very informative post. You are correct, on first looking in to my options I was naive in my wording re: "fighting" / "appeal" / "planning application." I am now very much up to speed on the processes, and also the relative costs (which you very helpfully indicated).

                    Your last 3 paragraphs are very interesting in this case. My house was built in the 60's and it's positioning means that it "overlooks" a large area with the side in question like a castle looking out over a village on the top of a hill (I don't mean this in terms of scale or grandeur). Prior to 2016 the end of the (rear) garden lead to a practically sheer drop of about 15 - 20 metres, and at the bottom was derelict land. In 2016 a row of 3 story houses were constructed with windows (and one balcony) on the aforementioned land, which look directly into my garden / house (distance from houses / windows to my garden about 3 metres.) Why there were no objections raised by the former owners I have no idea (there is not indication of comments on the planning application for the development.)

                    I bought the house in 2017. The house is built on quite a steep slope so the rear is much lower than the front. As such the "balcony" is actually on the ground floor with steps leading down to the garden. Now, the key thing here is that I can stand or sit in my garden and have direct view into all the neighbours windows. Being naturally much closer to the neighbours windows the "overlook" afforded to me from the garden is naturally much greater than from the balcony. The balcony gives no "additional" or more intrusive overview whatsoever. On this basis I believe may have good grounds to successfully apply for retrospective planning. I mean....do the council not want me being in my garden now because someone built a load of houses that overlook me?

                    Sorry for the long post and thanks again.

                    Comment


                      #11
                      As such the "balcony" is actually on the ground floor with steps leading down to the garden.
                      That sounds more like a patio than a balcony,so it may even be permitted development, but even if that is not something to argue about at this stage then a planning application will provide you with a definitive set of reasons why it not acceptable to the LPA if it doesn't obtain planning permission.

                      The fact that the other houses on the lower ground were granted planning permission with widows facing your rear garden is also a matter to be referred to in the statement that should accompany the planning application.

                      Comment


                        #12
                        Thanks again. It does I believe fit the strict definition of "a patio", however the decline is as such that it is way over the requisite 30cm height for permitted - more like 1.3m or so.

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