Consent withheld from co-owners but change is Permitted Development, would you continue?

[DundeeDancer]

We are trying to be adventurous and install a new window into the lounge of a apartment we own to give nice views out to the nearby hills. 

Our architect submitted plans to the planning department and it has been deemed as 'permitted development' on the certificate of lawfulness.

 

We had concerns when it comes to the title deed document though, in clause 3 given below it seems to as we need consent for alterations from the conterminous proprietors.  Therefore asked for consent from the co-owners of which there is 5 others in the block.
         
The said houses shall be used solely as private dwellinghouses and
for no other purpose whatsoever and none of the said houses shall
ever in any way be subdivided or occupied by more than one family
at a time and no additional buildings of any description shall be
erected on said plots of ground without the written consent of us
or our foresaids and (where necessary) of the Building Bye-Law and
Planning Authorities and no alterations or additions shall be made
on or to the buildings erected or to be erected without the written
consent of conterminous proprietors and (where necessary) of the
Building Bye-Law and Planning Authorities, but should the consent
of the conterminous proprietors in our option be unreasonably
withheld or delayed the proposed alteration or addition shall be
considered by us whose decision shall be final and binding on the
respective disponees; 

 

One owner gave written consent but 3 others refused consent on the grounds that the window would look odd in the position desired and suggested we just shouldn't bother.

 

In my opinion and the opinion of the planners who have seen the designs the window would look fine where it is, it's the same size and level as the kitchen window which will be 10 feet away.

 

So I still want to put the new window in but a little worried that if I don't have the consent of the other owners they might start legal proceedings against us but with legal fees what they are they would they raise proceedings against us to stop or reverse the installation the new window? And even if if they tried, as I have already gained "Permitted Development" status for the plans, would the other owners really have a legal case?

 

I'm thinking on contacting a law firm but the initial consultation is estimated to cost £600, so thought I'd see what people here had to say first.

Many thanks DD.

Edited March 1, 2017 by DundeeDancer
Tidy up.

[Jeremy Harris]

Welcome.

 

I think it hinges on who the "us" is in this part of the covenant:

 

47 minutes ago, DundeeDancer said:

but should the consent
of the conterminous proprietors in our option be unreasonably
withheld or delayed the proposed alteration or addition shall be
considered by us whose decision shall be final and binding on the
respective disponees; 

 

You could argue that consent is being "unreasonably withheld or delayed", as the planners don't have a problem with it and it's presumably not in breach of any byelaws.

 

I think you probably need some legal advice as to how to interpret this, but my view would be that there isn't much the objecting co-owners could do.  They could only sue you if the alteration in some way damaged their enjoyment of their own property, or if there was some other negative impact.  Not liking the look of something wouldn't be grounds for action, I'm sure.

[ToughButterCup]

58 minutes ago, DundeeDancer said:

[...]

So I still want to put the new window in but a little worried that if I don't have the consent of the other owners they might start legal proceedings against us but with legal fees what they are they would they raise proceedings against us to stop or reverse the installation the new window? And even if if they tried, as I have already gained "Permitted Development" status for the plans, would the other owners really have a legal case?

[...]

 

"And what precisely are the grounds for your complaint?"

 

"Well, erm m'Lud, we, erm, don't like the look of it...."

 

Welcome!

To be sure there will be wider contexts to consider, but in the terms outlined above - just ignore unsubstantiated opinion.

[jamiehamy]

And if everyone decides to put a new window in to get a view? These things are there for a good reason - ignore at your peril. The problem is,  once one starts,  others might want to do things and before you know it,  everyone is at odds with someone else.  

 

Planning right have nothing to do with the law. Having permitted development approval means nothing really.  I would be prepared to bet that your £600 will tell you that you proceed at your own risk.  

[Temp]

If the it reason they gave is they don't think it will look right the I reckon that's unreasonable. Had they complained about being overlooked then that might be different.

 

As others have said... Who is "us"? It looks like if you get their permission the other owners have no case. 

Edited March 1, 2017 by Temp

[IanR]

You need to satisfy that both the local authority and beneficiaries of the covenant "approve" the alteration.

 

With the LA accepting the alteration is PD that's the fist bit done, but you still need to get the beneficiaries approval.

 

To understand the minimum you need to do then you'll need that legal advice. My non-professional view is that "conterminous" means the owners with which you share a boundary need to give you written permission.

 

I'd try a diplomatic approach to just those owners and see if you can talk them round. They may have misunderstood what you want to do. Not many people understand a drawing.

 

If they unreasonably withhold permission then you could approach whoever "us" is that has the final decision. Us may be the freeholder of the building, or a previous owner  or their heirs.

Edited March 2, 2017 by IanR

[DundeeDancer]

The “us” would have been Wimpey Homes Holdings Ltd but they don’t own anything on the development any more so they would not get involved now, so a friendly solicitor has advised me but he’s no expert in planning law.  So the “us” would fall to the judge at the Lands Tribunal Court, I believe.

 

There are 6 apartments in the block, 3 one side a stair in the middle and three the other side.  The flat I own is top left and the flat directly below has given consent to proceed. It’s the ground floor flats that are objecting the strongest. From the point that it would affect the look of the building but it’s the side wall where I would like to install the new opening where all the overflow pipes and boiler exhausts come out, not the nicer front or back of the building.

 

I’ve tried a couple of friendly letters explaining that the window will be of the exact dimensions of the one beside it and should make the building look more friendlier from that angle because some warm light will occasionally come from that bleak looking side of the building on dark nights.  Also any issues with the new window will always be my responsibility.

 

No luck though the objectors are not budging, so the options I seem to have are:-

 

1. Don’t install the new window and give up on the dream of a lovely new view.

 

2. Apply to the Lands Tribunal Court for a waiver of the title condition would cost me roughly £3,000 if using an experienced solicitor or I could try making a mess of it myself for £500.

 

3. Tell the objectors that I’m just going ahead with the window installation and my solicitor details are xxxx and if they strongly wish to object then they should seek interim interdict which would probably cost them in the region of £5,000 and let the high stake poker game begin.  Although I would be a little upset if the objectors won and I had to put the wall back the way it was along with paying my court costs and there court costs so totalling £15,000 to £20,000 would be a little sore to lose!

 

I’m starting to lean towards option 3 as what are the chances of people objecting that strongly to a bland window but the wife is leaning towards option 1 

 

Thanks, DD.

Edited March 2, 2017 by DundeeDancer
Tidy up.

[dogman]

Be careful assuming wimpy will not be interested.  We bought a plot of land from a major developer during the first housing crash.  When we sold the house we built we picked up on a short covenant stating that we had to inform The Us in our case  of any development on site.  It cost us £1400in admin and charges to discharge 

[DundeeDancer]

The friendly solicitor who is no expert but wasn’t charging me for my little questions commented that the judgement would hang on “preservation of amenity” i.e. maintaining the beauty of the building, so that is going to come down to a person’s/judges opinion.  So unless you’ve been down this path before it’s a hard one to call.

[ProDave]

Another issue. Who owns the land you are going to have to stand some scaffold on, to get up to fit this window?
 

[Ferdinand]

Does Scotland have a version of these people?

 

http://www.lease-advice.org/about-us/

[Temp]

The “us” would have been Wimpey Homes Holdings Ltd

 

Do they own the freehold or act as managing agent? 

 

I would try and get it sorted formally or there could be an issue when you sell. Might have to take out an insurance policy for the new owner if you can get one.

[DundeeDancer]

In Scotland, there is no freehold and leasehold distinction. What you buy is 100% yours and you can say everything is ‘freehold’ in Scotland. So I don't need to worry about leasehold issues.

 

The land where scaffold would go would be part of the developments shared garden, so that should be fine also.

[Ferdinand]

11 minutes ago, DundeeDancer said:

In Scotland, there is no freehold and leasehold distinction. What you buy is 100% yours and you can say everything is ‘freehold’ in Scotland. So I don't need to worry about leasehold issues.

 

The land where scaffold would go would be part of the developments shared garden, so that should be fine also.

 

Do you not need everyone else's permission for that, too?

[ProDave]

Yes Leasehold is rare in Scotland. When we owned a flat, we jointly owned the land it stood on with the flat above. We were both jointly responsible for "common parts" i.e foundations and roof. We owned a 1/8 share of the entrance area in front of the flats, we owned the whole of our garden and a parking space.

 

But the issue is not about ownership, it's a covenant issue and who / if can enforce it or how to get permission.

 

Very often if the covenant was put there by the builder, it was to protect them from you doing something stupid while the development was being built that might hinder sales of the other units. Quite often when they have finished and gone, they have no interest in enforcing the covenant, but it is still there, and "unlikely to enforce it" is not the same as saying you can ignore it.  On a much more trivial level, I kept a caravan against a covenant for 3 years with nobody bothering me, but it would have been simple to move it if there had been an issue.

 

The annoying thing about this situation is it demonstrate developers total lack of interest in providing a window where it might enhance the property with a nice view. Instead it's probably one of their standard designs and they could not be bothered to tailor it to better suit the location.
 

[DundeeDancer]

7 minutes ago, ProDave said:

The annoying thing about this situation is it demonstrate developers total lack of interest in providing a window where it might enhance the property with a nice view. Instead it's probably one of their standard designs and they could not be bothered to tailor it to better suit the location.
 

You've hit the nail on the head there! If the developers had angled the building 45 degrees clockwise then everyone would have got the nice view.  Now the only properties that can get the view is my top flat and possible the one below me if we go to the trouble of installing an extra window.  If only the developers had the vision in the first place.