I have just been refused planning permission, does this mean i can never get planning for my house again? What are my options?  

 

Q: I have just been refused planning permission, does this mean I can never get planning for my house again? What are my options?

A: In short, you can still get planning.

However, there is an exacting process. I will explain simply as follows:

If your planning gets refused, you should always read through the report to fully understand why it was refused by the officer, most of the time you can mitigate the reason if you know how to.

For example: You asked for a big ground floor extension, they are refusing because the plans are blocking the neighbour’s daylight, this is easy to solve.

Purchase a daylight and sunlight report from a company for this property, submit it to the council and it’s likely to get approved, the same goes with other reasons that can be easily overcome.

However, if you cannot resolve the refusal reason but still want it approved, you move onto the next stage called ‘Appeal’.

To understand basic planning and appeals, continue reading.

Government planning where the secretary of state advises what you can get through permitted development. Local planning is where each and every authority/borough decides what you can get in the local plans. Local authorities take into account what will or won’t work according to that area and they give out an SPD (Supplementary Planning Document) specific to the area. It’s important to note that you must abide by those rules. Here’s an example: in South Tottenham, the council decided because Jewish people are moving into the area and have large families, they will allow a Type 3 Loft – this is another storey and a half to build on top of the house and provide more bedrooms, turning your 2-3 bedroom house into a 6-7 bedroom house.

However, be aware that the secretary of state (government) is above an SPD.

This is very useful if you disagree with the council’s decision, as you can reach out to the planning inspectorate (PINS in short) and say you want to appeal the decision. The reasons to appeal are normally because the council have assessed the drawings wrongly or didn’t take into account all relevant information.

After the appeal, you can get approved/refused, it is completely non biased, the planning inspectorate are based in Bristol and they look at your application, assess against the SPD and your evidence and they can decide if you get approved or refused. If it’s refused again, the only way out of it is through high court. However, a high court decision does not give you an approval, they will reset the clock and give you another free go with the planning inspectorate. If it gets refused by the high court, there is nothing left to do. But, don’t forget, you can still go and negotiate with the council to get something.

If you decide to build without planning, it’s not a crime. Let’s say If I go in Tottenham and build a type 3 loft without planning, the council cannot enforce it. Because their local SPD says that I can build such a loft in Tottenham.

Planning just tells you that whatever you are proposing is in compliance with the SPD. Once you build it, there are 2 routes: firstly, there is established use after 4 years, whatever you build in a residential property becomes established use and is immune from enforcement. In commercial property it’s ten years. Example: you make a back extension in a house, divide into 10 flats. 4 years pass, it has now become established use and is immune from enforcement. With commercial property example: you change from an office to a shop, if there is no PD but if you change from an office to sui generis/HMO to a casino, you need to wait 10 years for it to become established use. As well, if you change from a house to an HMO, it’s called commercial and you will need 10 years.

The evidence will have to be built up over the years as the onus of proof is on the owners/applicant of the property to show evidence. To show your house was divided into flats: council tax, tenant agreements or if the tenant themselves signs an affidavit or a statutory declaration saying they personally lived there for 4 years or you find a tenant from beforehand and they write I lived there for 2 years prior – need 2 to cover the 4 years, these are wats to gather the evidence to establish the use:

If you built a 7 metre back extension on your house without planning, and you get caught by the council, they will normally send you a PCN (planning contravention notice) asking for information, when it was built, they want to establish if it has been there more or less then 4 years, not answering a PCN or answering falsely is a criminal offense you could be prosecuted and could receive a huge fine and even imprisonment.

It is extremely important as soon as you receive a PCN that you get a planning consultant involved and you answer it.

If the council decide not to give you planning, for the 7 metre back extension you built, they will serve you an enforcement notice.

The Process:

  1. Owner gets served the enforcement notice
  2. What was the breach of planning control, in this case building 7 metre back extension
  3. What is the remedy? break it down back to the house
  4. Why they will never give you planning for this and they have to actually justify the enforcement notice,
  5. Once the notice is enforced they will normally consider (a large family) that it’s not possible to rectify within a short amount of time, they will give a reasonable amount of time to rectify it

After you get an enforcement notice, it’s not gone. You have the right to appeal to the secretary of state within 20 days, they will give you a date when the notice gets established. The same way you can appeal a planning application, you can appeal an enforcement notice. You give in all evidence why planning should be granted.

There are a few grounds for appeal

  1. Planning should have been given
  2. There was no breach
  3. It was over 4 years old and is established
  4. To rectify would be extremely excessive, example, break down your back extension plus make a nice huge beautiful garden with a trampoline and swimming pool, the remedy is considered top excessive
  5. If an unreasonable amount of time is given to rectify, it is unreasonable due to your personal circumstances of having elderly parents living with you, plus a large family of your own and you can’t find a suitable alternative place to live whilst the works are carried out, if the council gave you 9 months you can ask for a year or a year and half based on circumstance

Now the planning inspectorate gets around 6 months to a year to start an application, they will go through and decide if they grant planning. Yes, it’s over 4 years or not. Yes, we give you an extension of time to comply or say it’s too excessive. They work for the secretary of state. They’ve got the ultimate power to decide yes or no, and can even go against policy.

If you lose a planning appeal, again you have the right to go to high court with another go but that doesn’t mean you will be granted permission even if you win in high court it only means if you win in high court that you get another chance to appeal it, someone in Tottenham appealed for his loft extension, lost, went to high court, spent over £70k and won in the high court. Got another planning inspectorate to look at the case and lost again (refused) and he had to do the works. If you lose the appeal and decide not to go to high court, you can still go back and make a deal with the council. The sooner you go back to them with a possible compromise like saying, yes, I have a 7 metre back extension but I will cut It back to 5 meters

After the time you have been given to comply has expired, from the day you can be prosecuted for a criminal offence and you get a criminal record, you can also receive a fine, best case scenario is the minimum fine of £2,500 plus lawyers’ fees. So normally, it’s sorting this out with the council straight away to avoid criminal charges, record and fines. If you can’t comply, tell the council why not and give them a reason with the notice, the sooner the better.

If you didn’t comply with the breach of conditions notice and you collected rent, they can go for POCA (Proceeds of Crime) and they can gain back all the rental income from when it was supposed to be complied with. There were people who got prosecuted and had to pay a hefty fine in rents for 100’s of thousands of pounds

Now if you illegally divided a house into flats, I would always advise to appeal in order to gain time, the appeal takes 6-12 months to look at and you can continue to rent the property throughout the appeal process and collect the rents regardless of the legality of the property. So sometimes, it’s worth appealing on grounds of excessive remedy and you need more time, this way you will at least be extending the amount of time you can collect rent for.

However, if you got planning and you don’t build according to planning, you do not get established use after 4 years. This is a big issue. Any time the council can serve you a breach of condition notice which straight away demands that you put it back to the planning you got and you don’t have an appeal process to it. There is only one thing you can do which is to appeal through the high court which costs 1000’s of pounds and has very small chance of being successful  

The only way when a breach of condition notice cannot be served and gets immunity is after its established for 10 years, so if you did get planning, make sure you obey the planning drawings, this is extremely important to avoid issues.

I hope this clarifies things.

 

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