Deck on a slope - retrospective planning permission request

[oldbutnotdead]

Of course it will affect any sale. You'll have an easier sale if you can resolve it (ie letter from council saying yes it is pd, sorry to have bothered you) but if for some reason you can't wait then as long as you are completely open with purchaser and share all documents you can sell as is.

 

[johnny2007]

Yes, you will have to disclose that to any potential buyer.

 

[BowlingShane]

How long do these things normally take to resolve where you get that letter from the council? Weeks, months….years?

 

[freddiemercurystwin]

All depends on the local authority, there's a thread in the Building section still active today where the homeowner seemingly had it all resolved within a few days, in other cases on here it can drag on for months or more.

 

[mrrusty]

If you are selling, I think you only have two choices: remove it or apply for LDC (not planning if you believe it is PD, as we do), and then appeal the decision if it goes against you. Going into a sale with this unresolved is pointless, as it's bound to come up.

 

[BowlingShane]

Update:

I emailed the council to explain how the height of the deck is less than 30cm at the point where the sloping site is adjacent and received this response.

“I can advise that if the height of the raised platform (decking) exceeds 30cm above the original ground level at any point it is our view that planning permission is required. If of course you disagree and believe that the raised platform (decking) is not development you could submit an Application for a Lawful Development Certificate.”

I’m not sure what to make of this, surely doesn’t matter what their view is, what matters is what the regulations are? I was thinking of applying for a lawful development certificate but have a feeling it will get rejected regardless and will have to appeal it.

Thanks everyone!

 

[freddiemercurystwin]

Did you write a succint response to them stating why you think it is PD? And this is their reply? It really depends on when you are selling, the stock advice is to ignore everything if/when/until they take proper action but if you want to sell up quickly that's not necessarily an option.

 

[BowlingShane]

I did, followed the advice given here explaining why I think it’s PD and this was their response a week later.

I’m not sure what to do regarding when to sell this house. I sometimes think it would be simpler just to rip it out and sell quickly but I don’t think I should have too as it’s PD. But I’m not confident that this will be resolved by spring next year if I apply for a lawful development certificate, I have a feeling based on other threads here ill need to appeal it.

 

[mrrusty]

You could just call their bluff, and say "it's PD, and if you don't agree, please issue an enforcement notice which I will appeal - I have no intention of applying for a LDC" - it might speed the process up a bit...

 

[^woody^]

I'd reply "Res ipsa loquitur", and quote the actual legislation they should be following, not what 'their view' is.

STATUTORY INSTRUMENTS​

2015 No. 596​

TOWN AND COUNTRY PLANNING, ENGLAND
​

The Town and Country Planning (General Permitted Development) (England) Order 2015​

Interpretation​

2.—

(2) Unless the context otherwise requires, any reference in this Order to the height of a building or of plant or machinery is to be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph “ground level” means the level of the surface of the ground immediately adjacent to the building or plant or machinery in question or, where the level of the surface of the ground on which it is situated or is to be situated is not uniform, the level of the highest part of the surface of the ground adjacent to it.

 

[BowlingShane]

Hello,

Thread update on this and I’m pulling my hair out and need some help.

Summary:

- I received letters and communications from the council saying that in their view the deck requires planning permission and is open to enforcement action because any deck over 30cm in height at any point needs planning permission

- I instructed a planning consultant to act on my behalf with making an application for retrospective permitted development certificate as according to the legislation the deck falls in my PD rights

- This is where it gets sticky and I’m genuinely questioning whether I’m wrong or whether I’ve just got unlucky with who’s working on my behalf

- I’m trying to piece together what the planning consultant has sent through to the council, for some reason he thinks I’ve already received an enforcement notice from the council and that has led him to apply for a permitted development certificate for a proposed development instead of existing. Even the council are calling out quite objectively that this is the wrong application type.

- He’s adamant he’s correct in doing this because he says you can’t apply for a retrospective LDC for existing use if enforcement notices have been issued. To my knowledge I’ve not received any enforcement notices and I’ve told them this numerous times, just that the council are saying it’s open to enforcement action. I stated how much an error I think this is as the deck has been in place for over 2 years. Is he correct?

- The council are saying either apply for a retrospective LDC for existing use and you’ll probably be rejected but you can appeal with the Secretary of State and this can take many months etc or apply for planning permission. I told them from the outset I was well aware that this was going to happen and was prepared to appeal to the planning inspectorate.

- The council is saying that subject to the consultation process the planning submission would likely be successful. I think this is wishful thinking as then the neighbour will be able to complain about privacy etc and the council will control the outcome.

- Both he and his MD are trying to force me to apply for planning permission because it will only take 8 weeks whereas if I appeal to the planning inspectorate it’ll take 50, apparently. I had to point out what will happen if the planning permission request is rejected and was told I’d have to appeal anyway.

I just want to be sure I’m going to tell them to do the right thing in my response here:

- Confirm that enforcement action hasn’t been applied to my property regarding the deck and even if it was why would that be an issue if I was going to appeal it on the grounds of it being permitted development anyway?

- To apply for a retrospective permitted development certificate for existing use, and when it’s most likely rejected that il appeal it regardless of whether it’ll take 50 weeks or not

Should I just ditch this firm after the correct application is submitted and when it’s rejected find someone better to appeal it for me?

 

[mrrusty]

IMHO I still believe you need to force the council to issue an enforcement by calling their bluff. They then need to make an actual decision instead of stringing you along. "Is it PD or do we really believe that it isn't". Enforcement costs the council money. A planning application costs you.

"Dear council, It's PD quoting what @^woody^ has posted. If you don't agree please issue an enforcement notice so I can start the appeal process" To get to enforcement may well require the legal team in the council to make a decision rather than just a planner. They may see sense. The backstop is it probably doesn't add that much to the value of the house if you are selling so there isn't much to lose if you decide at the end of the day to take it down for expediency.

 

[big-all]

i would say
as far as i am concerned, my decking complies because its lower or at 300mm at a given point and as a level deck there for complies as a single structure

please note opinions are off no concern to me as only the meeting the requirements as stipulated will be considered----


yes tongue in cheek but shows you are a possible equal rather than bow down on command

 

[BowlingShane]

I’ve instructed my planning consultant to apply for a lawful development certificate for existing use today and he’s given me quite a puzzling response.

He’s making a point that when an applicant applies for an LDC for existing use only when:

- That the operations which have been carried out on the land for such a period of time are now immune from enforcement action and are therefore lawful.
- The statutory provisions tell us that "lawful development" is development against which no enforcement action can be taken and which is not in contravention of any planning enforcement notice or breach of condition notice which is in force (see Section 191(2) and (3), TCPA 1990).

They’re getting hung up on the fact it’s not been there for 4 years and that will stop it getting a permitted lawful development certificate for existing use and the council will “reject the application” and that the boilerplate letter I got is actually enforcement action.

I’m confused and need a sanity check, I don’t think I’ve breached planning control hence why it’s permitted development regardless of how long it’s been there…feel like I’m going spare explaining to them apply for the LDC, if it’s rejected and enforcement action is issued il appeal it. I don’t think they understand this is nothing to do with time scales making buildings immune from enforcement action and that the deck is within my PD rights anyway.

 

[thomp1983]

I've no idea why you bothered with a planning consultant, as advised earlier all you needed to do was respond to the council that it is permitted development and if they disagree then they can proceed with enforcement action.

One letter that's it and leave the council to make the next move, as there in the wrong they'll find some graceful way of backing down eventually but it's not your problemm