Avoid/change agreement to build parking spaces

[Dave R D]

hello all,

I'm trying to understand whether i can change an agreement that was made on a house I have bought, and avoid losing garden space, to parking space.

I recently purchased a two-bedroom terraced house.
When the seller made the original purchase, it included an adjacent plot of land.
He obtained planning permission to build a new two-bedroom house on the plot.
(The new property is now the end of the terrace, and he is living there: he separated the title and sold me the original property).

One of the conditions of the planning permission was that he must build four parking spaces (two for the original property and two for the new one), allowing enough space for maneuvering, at the rear of the properties which back on to a rear-access alley way.
This obviously reduces the garden space significantly.

I don't know why he was required to build spaces for the original property, since it has been here for decades. For the new property, I can understand that spaces may be required, to avoid adding extra cars to the street.

1. Is there a way I can keep the land as a garden, and free myself from the agreement?
2. Is there a way the seller (my new neighbour) might be able to keep his garden?

When I was purchasing the property I did not think to question this. My view was that these were the conditions he was given, so it must be done.
Now, because he allowed me to complete the purchase early,the parking spaces have not been made yet. Since I now own the house, I may have grounds to say I want to keep my garden, perhaps by having the original decision revised. (Of course, when I bought the proprty I did accept the map/plan which showed how the property & boundaries would look, complete with parking).
In retrospect, the guy now thinks, he should have first separated the original property from the plot, and applied for the planning permission purely in relation to the plot, with no mention of the original property. Then there would have been no question of building parking spaces for it.

Thank you for any advice you are able to provide.
Dave

 

[McAhuna]

How long ago was the permission given? Some conditions have a habit of 'slipping away' forgotten and are not enforced, particularly if no one notices or complains. It sounds unlikely that anyone will complain about your garden, unless your parking your vehicle elsewhere is a nuisance for someone else. Your best bet might be to do nothing.

The other point is that technically it is your neighbour who didn't comply with his condition on his planning permission. I am not sure you inherit his condition with the property, but i am not 100% about the legal position on this. Did he tell you about this condition prior to purchase or did you sign anything to say you would undertake the works? Did it come up on your 'land searches' prior to purchase? If the answer to either of those questions is "yes" then the condition may technically be your responsibility. But I suspect the Council Planning Enforcement team would shy away from such a legal quagmire, especially as it is only about 2 parking spaces - they may simply not be resourced to pursue you. It also depends on why the conditions were applied in the first place. If no-one seems to know or the permission didn't justify the condition, they are less likely to enforce

Worse case scenario and Planning enforcement gets on your case, you can still apply for a removal or variation of a condition.

 

[Dave R D]

McAhuna, thank you for your reply.

- in March 2015 the initial application was refused because the size/style of the house was considered excessive (3 bedrooms) and unmatched to the surroundings and.....
- the highways people had stated that the proposed parking spaces did not allow the required 6 metres of space behind them to allow a vehicle to be maneuvered in/out
- the revised application was approved in September 2015: two bedrooms, and 6 metres of space behind each parking slot.
- I still cannot see from the original plans/proposal why the architect proposed 2 spaces behind the original property, as opposed to 2 spaces for the new property only.
- I was fully aware of the proposed development and the architects plan when I bought the house.
(He couldn't build his new house without meeting the conditions which included providing parking)
- The point I did not make earlier is that I already knew the seller. It was a gentlemen's agreement between him and me that I would complete and move in early, and he would complete the gardens and parking afterwards.
- true to his word, that is what he is doing, but as we both stand out back each evening, I started to see what a shame it is to remove the cherry tree, demolish the greenhouse, chop down a row of conifers, knock the far wall down and level an area roughly 10mx6m which could have been garden. (Especially when pakring was not required for this property before).

I think you are correct to suggest I did not inherit the legal conditon with the property. As you say, the responsibility is his. Of course, I don't want to get him in trouble with the council by requesting I keep my garden as a garden and thus reveal that he has not met the conditions. Especially since he is working to meet the conditions and not trying to dodge them unlawfully.

I guess the quandary arises because I shouldn't really own the property yet...but I do!
I wonder if he could raise a retrospective request to drop the requirement for my two spaces.

Your suggestion of possibly doing nothing is a valid one, McAhuna: it is unlikely that the street would be overcrowded with cars if we never built the parking spaces. If he built spaces for himself, and left mine as a garden, then the impact would be zero, since we wouldn't be adding any cars to the street.

Thank you for your kind advice and ideas.
Dave.

 

[freddiemercurystwin]

Does the condition to build the spaces state they should be operational prior to the occupation of the new property or similar? Because unless it does I don't see why you would need to do it.

 

[McAhuna]

Q- I wonder if he could raise a retrospective request to drop the requirement for my two spaces.
A - Yes. He can apply separately for a removal or variation of a condition.

You say "(He couldn't build his new house without meeting the conditions which included providing parking)", but I don't understand this as he has built his house now?
Also this doesn't square with "Especially since he is working to meet the conditions and not trying to dodge them unlawfully." I thought the point was that you both wanted to avboid these particular conditions, so he is not currently working to see them through?

Freddie Mercurys previous point is valid. You and he may already have breached the conditions by living there, technically before works are complete,

The condition of providing parking on your property is extremely odd - I would check the officers reports, minutes of planning committee, etc, etc very thoroughly as to the reason. It may even have been included in error.

 

[Dave R D]

Hello. Sorry for the long time to respond.

Freddiemecurystwin, McAhuna,
- yes, the conditions state that all work (including the parking spaces) must have been completed before the new property can be used.
- yes, he is in breach of the agreement. Perhaps I am also implicated.
- we don't see this as immoral because the parking spaces will be completed in a few weeks. In the meantime, there is no extra strain on the on-street parking because there are plenty of spaces.

" he couldn't build his new house without meeting the conditions..."
- what I meant is that when I was going through the buying process, it was a simple case of being shown: 'here is the plan approved by the planning committee, this is what the property will look like when you move in.' It did not occur to me that I could request him to challenge/remove one of the conditions from his planning permission agreement. I just accepted that those were the rules and requirement.

"especially since he is working to meet the conditions an not trying to dodge them unlawfully".
- we both accept that the work is required to complete the agreement, as per the planning permisson.

So, it is true that the horse has already bolted.
The sort of questions I'm asking now are:
- what would happen if we did not complete the work?
- area the council bound to come round and inspect the site, if so, will they fine him, take him to court, take me to court etc.?
- what if we build the parking spaces, get the inspection completed, and then turn it back in to garden?
(How likely are we to get in trouble, since the agreement does state that the development cannot Be altered afterwards)
- have any of you done something 'clever ' to meet the requirements without losing so much space?
- after the work is completed, could I apply for permission to turn the parking back in to garden? How likely is it to be approved?
- if the guy now applied to remove or modify a conditon, would the council say "hold on a minute, you're not even supposed to be living there yet, or, would they be more pragmatic?

My feeling is that, possibly, the architect made a mistake by drawing 4 spaces on the original plan. Then the planners looked at it and said "yes, of course you need 4 spaces, but they're too small..."

As you say McAhuna, the condition of providing parking one MY property his odd.
I can see the argument for having it on the newly-built property.
The initial refusal for permission is clear in that it makes general references to the parking/transport section of the town planning policy that they call the 'local plan', technical guidance on parking standards, and a document that relates to 'infill and backland development'. They state that the proposed parking was not adequate to serve the development and this would lead to additional (unacceptable) parking on the highway.
The subsequent proposal was accepted based on new dimensions for the car parking spaces.

I have browsed all those documents. In general they all explain that new developments must consider parking requirements. It is also explained that a new house/dwelling, with X number of bedrooms requires a number of parking spaces, dependant on the area and the type of property.
But still I cannot understand why the original house required spaces adding.
The seller explained that he discussed it with someone from the local planning department and they explained that since the plot to be developed belonged to the original property, spaces MUST be added to the original propertry and those were the rules.
I dont see the logic in that, and, I am trying to find the answer, albeit retrospectively, in case it helps me make a case for the future.

Thank you for your comments and questions.

 

[^woody^]

There was another thread similar to this questions a while ago.

It's complicated is the answer. Have a search for it, it's a few pages long and about a very similar situation.

 

[Dave R D]

Woody, thanks for your message. As sodd's law would have it, I couldn't find a similar situation when I first searched the forum using various combinations of key words, but...after reading your post I found two items within 60 seconds.
The one which looks most similar is this one:
Received an 'Alleged Breach of Condition' from Council Planning Control - Help!
Discussion in 'Building Regulations and Planning Permission' started by AJ1983, 28 Nov 2015.

Basically, the OP bought a house 'no.11', and then found out that the neighbouring house, '11A', was built on a plot of land which had originally been part of the no.11 property, and had been constructed based on planning permisson granted to the original owner of no.11, and included a condition which required parking spaces be constructed behind 11 and 11A. The wily original owner of the whole property had split the title, sold the adjoining plot (now 11A) to one person, and sold no. 11 to the OP. The no. 11A guy built a new house in the plot, following the plan, expect that he did not build parking spaces on what was now the OPs land! And the OP then found himself being accused of breaching conditions of planning permisson.

......as you said, it's complicated and I'm not sure even I understand the paragraph I just wrote.

I cannot see a conclusion to that thread, looks like the OP disappeared, though it would be very interesting to know the what the outcome was. It is remarkably similar to my situation. Mine differs in that I have the full trust and cooperation of of my neighbour, he is the original seller, and, everything was made open and clear during the sale and conveyancing process, so there are no surprises.
Still, the info in that case may be useful to me, especially if my neighbour and I decide to fall out.
Thank you Woody, it was good call. And an amusing but relevant riddle that you posed on that thread, 'what if a developer buys a plot for one hundred houses...'

 

[McAhuna]

Dave, you ask - "are the council bound to come round and inspect the site, if so, will they fine him, take him to court, take me to court etc.?" No, No and No I would have thought. Worse case scenario - someone complains and the Council insist the condition is adhered to. I think you would still have time at that point to apply for removal of the condition.

It sounds like these questions are really ones that your friend/neighbour should really be asking his architect. The architect must have known and understood the answer as he/she amended the application.

 

[Dave R D]

Thank you for that advice McAhuna, and thank you to everyone for the comments.
Yes, I think I will leave it to my neighbour. He can discuss with the architect.
Based on what I read on the planning application documents, the parking spaces are required (the original application was rejected, in part because the proposed parking was insufficient)
I may consider in the future if it is worth applying for permission to reclaim the parking spaces for garden.
I haven't used this forum before, so don't know if I need to mark the thread as closed, but from my side, the thread is concluded. Thanks again for the advice and comments.

 

[Nakajo]

Presumably, there's no section 106 agreement associated with this planning permission, prohibiting (or attempting to prohibit) the provision of on-street parking?