Retrospective planning permission for oversized porch

[VickyHodges]

Our neighbour has built a 'porch' extension to the front of their house, though in reality it spans the entire first floor. He is a self builder and so did so without any planning permission. It is larger than 5m2 and in my opinion looks a mess. Although bricks match, the style is not in keeping with neighbouring properties at all.

We filed a complaint with the council and so our neighbour has now applied for retrospective planning permission. 

What's the procedure at this point. Given that it is oversized for a porch, is it an automatic fail? Or does the fact they have completed the build make it more likely that the council will just accept it as it is? Also, what is the difference between 'porch' and 'first floor extension' and does that have any significance here?

Thankyou for any advice
Vic

[Tennentslager]

Can you post a picture?

[Ferdinand]

There is not really enough information here to comment in detail.

eg is he self-building a house and has oversized it, or has he just self-built the porch, is it finished etc.

It will now follow the normal planning procedure, which I think means you and others will be able to object.

However, unless there is a *major* impact, I would think that it would get through, since Councils are reluctant to make people demolish finished projects unless eg there is a safety issue, or someone is seriously taking the p and driving a coach and horses through policy (eg that haystack castle) which may cause the Council to feel slighted, or has specifically annoyed a key person in the Council who may then motivated by personal issues / get a bee in their bonnet.

If you are materially affected you could take civil legal action, which is likely to be an expensive lottery, but may win you compensation for wrongs. Maybe.

Potentially you could presumably go for an Injunction to have it removed, but that would in my view require at least a severe and material personal impact such as causing a clear hazard.

The Gardenlaw Forums may have also have experience in this particular area.

Ferdinand

 

Edited June 12, 2016 by Ferdinand

[Jeremy Harris]

My thoughts align pretty much with Ferdinand's.

There is only one consideration that the planners will take into account, and that is "does this application comply with planning policy and guidance?".  If it does they will approve it, if it doesn't they may either ask for some changes to make it compliant, or exceedingly rarely, they may refuse permission and then seek to take enforcement action to have it taken down.

Neighbours personal views don't count for anything at all, unless they are pointing out a failure to comply with planning policy and guidance, or they are directly impacted by the development, such as loss of light, privacy, increase in traffic density etc.

Neighbours routinely object to things they personally dislike; a read of pretty much any planning application on any local authority website will show this, hundreds of people write letters of objection every week, and 99% of the time they carry no weight as they are not referring to planning policy or guidance.  The planning application for our self-build plot that was extant when we bought it had 14 letters of objection on file from neighbours.  All were ignored by the planning officer and committee, as not one was objecting on the grounds of any valid planning policy - all were basically "we don't like the idea of someone building there" letters, which frankly were a waste of paper as far as having any effect on the application went, all they did was cause a delay and inconvenience for the applicant, the planning officer and the council planning committee.

If you feel that this porch doesn't comply, then quote the specific policy or guidance that it is in breach of in your letter of objection, and make it very clear as to why, in your view, it fails to comply.  Not liking the bricks etc is not a valid reason for objection, unless the house is in a conservation area or other area with specific restrictions on external finishes.  There is always a slim chance that you may spot something in the policy and guidance for your area that the planning officer dealing with the application may not have seen (unlikely, usually, as they generally tend to know their own policies pretty well).

 

[Ferdinand]

I'm going to apply a slightly different emphasis to Jeremy, in that there are in practice nuances and grey areas.

For example Planning Policy is full of words like "appropriate" and "proportionate" and "expedient" and "discretionary", all of which are judgement calls, and areas of ignorance where eg one LPA may not know of a precedent set in a Court relating to a case in a different area.

This can all be mitigated or changed if you know your stuff, which is why Planning Consultants can make a living - their job is to influence the judgement calls made in the direction of their client, and to make sure that the policies that support the client's view are prominent in the mind of the decision maker.

They are also not *bound* to enforce against violations of policy. From the National Planning Policy Framework:

Quote

In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 207:

National Planning Policy Framework 207. Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.

http://planningguidance.communities.gov.uk/blog/guidance/ensuring-effective-enforcement/planning-enforcement-overview/"

 If a Local Planning Authority (or people within it) take a stance at one edge of a grey area in one case, and the other in another, then the effect can be quite different. And people in the LPA may eercise their discretion in different ways depending on whether the member of the public has been a PITA or a Saint.

Also, local planning decisions do not form a binding precedent - because policies change and people making the decisions change. An example here is that they used to permit windows in the steep roofs of Oast Houses in Kent - no longer allowed, but the existing ones have stayed.

And once something has existed for 4 years it becomes immune to planning enforcement. The farmer kept his house inside his haystack for years, but he was able to be enforced in iirc because it was a deliberate deception to hide it rather than it having simply been there for 4 years. Had it existed openly, the outcome may have been different.

And having a local councillor on board makes a difference since they have influence inside the LPA.

If somebody has built a wall across your drive or a window looking into your bedroom, they may make them knock the wall down or put fixed frosted glass in the window, but they may not make them demolish an extension in the latter case. It is for the LPA to set the action to be taken.

Ferdinand

 

[Stones]

Your local authority will have a planning enforcement charter setting out the processes and options they can progress in relation to breaches of planning.  

Retrospective planning applications are one way of making such unauthorised developments regular.  As Jeremy says, the only thing that will be considered is 'does this application comply with planning policy and guidance' (all of which will be available on request / online).  The fact that the structure is already there, whether partially built or completed, (and the fact you don't like it), are irrelevant.  

You will have your opportunity to comment on the planning application.  As has been previously stated, this is where you need to highlight any failure to comply with planning policy and guidance, or show how  the impact of the development on you - loss of light, privacy, traffic concerns etc.

 

[Jeremy Harris]

I suspect that in the present financial climate there may well be a reluctance to take enforcement action where there is a risk that the local authority could incur cost, too. 

I'm in the middle of an argument with our council over a visibility splay, that illustrates this.  There is a legally binding obligation on the council to maintain a visibility splay either side of our drive where it crosses a wide verge they own.  They have chosen to stop cutting the verge, as a cost-cutting measure, rather than add a pound to the Council Tax.  They have a dogmatic rule that no matter what central government does they are refusing to increase the Council Tax and are just cutting services, like road sweeping, grass cutting etc instead.

Some of us have got together and go out and keep the verges cut, at our own cost, instead, and this worked until early this year when we were issued a letter warning us of criminal trespass, because a telecommunications company alleges that our unlawful grass and weed cutting has caused damage to their (already badly corroded) cabinet.  We haven't damaged the cabinet at all, I'm sure, but in the mean time we've decided we have no choice but to stop the volunteer effort, as none of us want to risk prosecution.

The verge has now grown to around 3 to 4ft high and contravenes the visibility splay requirements for several houses along the road.  Clearly the council have a legal obligation to comply with the requirement to maintain visibility for road safety, yet they are point-blank refusing to, on the basis that they have no funds to cut the verges.  In essence, they have decided that it's better to wait and see if there is an accident, and then pay out damages if it was found that the lack of visibility was a factor, rather than pay out now to cut the undergrowth down.

I am sure the same sort of cost-based decision making goes on in planning enforcement, too.

[Ferdinand]

Final comment.

The language they use is of "material" and "non-material" matters in planning considerations. The dividing line is often not where people think it ought to be, which can sometimes cause "not our problem - that is a civil legal matter" responses from the LPA making people get cross.

OTOH they may intervene eventually if a person is willing to be persistent, or if an MP gets involved. Sometimes!

Bets of luck.

Ferdinand

Edited June 12, 2016 by Ferdinand

[VickyHodges]

Thanks for your input Gents. Appreciated x

Vic

Edited June 12, 2016 by VickyHodges

[ProDave]

A phrase that springs to mind is "incongruous on the street scene"

That was the phrase used when South Oxfordshire district council refused planning permission for a garage. the garage was outside the building line so was not permitted development, but still further away from the road than some neighbouring houses.

They could equally apply something like that if they feel its design and scale is out of keeping with neighbouring properties.

But I won permission for my garage on appeal, so if they refused it for something like that, it too would likely be allowed on appeal.

 

Jeremy, re your vivibility splay, I wonder how the council would react if a neighbour of yours drove into you while exiting your drive, because you couldn't see him? any one of you care to test that? When the council get the bill from the insurance company for allowing a dangerous situation they have previously been warned about.....

[Jeremy Harris]

15 minutes ago, ProDave said:

Jeremy, re your visibility splay, I wonder how the council would react if a neighbour of yours drove into you while exiting your drive, because you couldn't see him? any one of you care to test that? When the council get the bill from the insurance company for allowing a dangerous situation they have previously been warned about.....

Yes, if there was an accident and if the failure to maintain the visibility splay was determined to be a factor, or even the primary cause (unlikely, as the primary liability would still fall on the driver to take account of the poor visibility) then the council might well be found liable in part.  My guess is that they would bear a proportion of the liability depending on how severe the visibility restriction was and what the precise actions of both drivers were.  This balance could be changed; for example if warning signs were erected highlighting the "hidden" driveways, then some liability could transfer to the driver of the vehicle driving along the road, on the basis that the warning places an additional duty of care on that driver to be more vigilant and adjust his/her driving to reduce the chance of an accident.

I've spent the past 15 odd years working with liability and insurers; it's always a can of worms but there is one universal truth - they ALWAYS go after the money.  That means they seek to take action most vociferously against those with the deepest pockets, so they will go after other insurers, companies and public bodies first, and rarely go after an individual unless they know that he/she is sufficiently wealthy as to justify action.