Neighbours have demolished my listed wall!

[amber]

I have a grade II listed house in yorkshire. I had been unwell and hence unable to get to the house. On checking my mail when able to come up to the house i discovered my neighbours had snuck in a planning application for a two storey rear extension. To my horror the deadline for making a representation had passed 29th Jan 2010. What sickened me was that the neighbours were in touch with my mother and she was phoning them regularly to check on the house. They never disclosed what they were planning as they knew i would object. In fact they would ask if i was better yet and if i was coming up! Their rear extension is going to be on the last patch of garden they have and in a place where it would be too close to my house and will make one of the bedroom's privacy even more compromised. The house also sits in view of my (main) side garden, how anyone could approve the extension which will bring the house even closer is beyond me.

I couldn't believe the extension was allowed as it was so close to the adjoining wall which the conservation dept admit is listed.
There i was worrying about why they didnt think of the impact on setting as per their guidelines and how i would prove that the right person did not consider setting (no conservation dept report as per their internal policy and planning officer now says he didnt think it was necessary), when i then discovered on the architects drawing online, that they were demolishing part of the listed wall in order to fit one corner of the extension in and allow a path so one can walk around the perimeter of house. What's more they were going to rebuild the wall replacing the substantial old yorkshire stone corner shaped wall that jutts in toward their garden space with a straight wall thus giving them some of my land!

The neighbours lied on the planning application form and said their were no trees on either side of the adjoining wall or within falling distance when there are a row of trees on my side of wall and two huge trees (silver birch and oak 10-15 feet away)! The planning officer visited the site and policy is to get a tree report but he didnt, and says he didnt think it was needed.There was no mention in his report that the wall is listed and would require listed buildings consent.

The neighbours' copy of title plan of their house shows a black line crossing the corner shape of wall which is part of my boundary line on my three separate maps from land registry! The land registry have drawn the red line around their boundary but have followed this 'new' line that crosses my boundary and the real wall on the ground. The neighbours took this error as 'must be true' rather than realising that the new line is the marking of a hedge. They didnt stop to think that this would become a dispute and is worth clarifying and simply got on with the demolition. The land registry agree this is a discrepancy and it is likely the new line is just the marking out of a hedge line. They are going to investigate.

I sought legal advice and wrote the first letter informing them of the listed status of 'my' wall and also their failure to notify according to the party wall act. They have ignored my request that they stop building immediately and they have continued to build!

The enforcement officer is involved and has conducted a site visit and written to them. She has instructed them to apply for listed buildings consent by a certain date. How can they apply for listed building's consent to demolish a wall that most likely doesnt belong to them and rebuild in a shape the encroaches on my land? How do i get them to realise that they should be obtaining boundary wall surveyors reports as per party wall dispute advice

I am now trying to obtain a court injunction to try and halt the work.

One corner of their extension clearly overlaps where the corner of wall was on the architects plan. How can this be okay?

The council have admitted all the above omissions in their reply to my complaint.

Should i be writing to the commission for historic buildings to explain the ownership issue so they dont end up granting the permission to someone who doesnt own the wall?

Useful advice would be much appreciated!

 

[Nigel Watts]

What a horror story - poor you!

Sounds like you have taken sensible action so far.

I believe you are entitled to appoint a surveyor at your neighbour's expense under party wall legislation. If you havnt already done so, getting your own surveyor on board quickly to assess and document the situation might be a good plan.

The problem with disputes with neighbours is that you have to continue to live next door to them!

 

[Schoolmarm]

Have you got legal expenses cover on your house insurance? Or on any policies?


Have you been on the gardenlaw forum?

http://www.gardenlaw.co.uk

 

[Stephen]

This is also a Party Wall matter and your solicitor should consider that as well. They should have served notice for rebuilding the wall, etc, etc. They may also need to serve notice for the new extension if it falls within the scope of what is regarded as 'adjacent excavation' (within 3m or 6m). It would be worth looking at the plans in the context of Party Wall matters. It may not directly prevent them from doing the work, but it is another obstacle for them and another matter for which you can get an injunction.

Stephen

 

[amber]

Thankyou for the above replies!
Well, since my original post a lot has happened...neighbours have been building as quick as they can because a councillor they are good friends with has told them to hurry up and get the roof on as no one will make them take it down. They have received a 21 day notice from the enforcement officer which they are ignoring. They asked their agent who was the architect for the extension to come and complete it...Still can't digest that enforcement officer posted them the form (along with notice) to make a retrospective application even though there is no section under certificate of ownership for when you don't actually own the listed structure you have knocked down! I rang the agent for the first time on instruction by my solicitor to find he was at their premises and more aware than the clients as to seriousness of their action. He admitted they were still building and advised them to stop immediately and seek solicitor advice. He also informed them that he would not complete the form until they had spoken with a solicitor. They then put the councillor friend on the phone to him who told him I can't get an injunction or do anything to them! There must be some code of conduct the councillor is breaking! In 7 days thye have gone from foundations to 20 feet up.

Finding an appropriate solicitor has been nigh on impossible...no heart, not even necessarily a good knowledge of which breaches of laws apply (and which i am supposed to be chasing (civil/public), the only thing ticking is the meter they have you on! The 'head of boundaries' person turned out to be a trainee legal executive. When i received the injunction application and draft injunction order and all my relevent documents i glanced at the forms to find errors on almost every line of a not so lengthy two forms! Couldn't believe it, he hadn't even included my title plan and register let alone the neighbour's. The thought of how sub-standard the statement of case is likely to have been didnt bear thinking about. I then got referred on to another firm who referred me on to another, the solicitor i then spoke to gave some things to do and then if i wanted to get back to him. I soon did require his assistance to find for the next two days he was completely unavailable. I then went and submitted the injunction myself! The judge was really nice and explained why he wasn't going to make a decision that day...no witness statement and needed to 'beef up' the documents/evidence...off i went. A kind neighbour and her solicitor son talked through the financial risk of seeking an injunction...judge had said i needed to prove the damage would be irrevokable and that simply continuing building was considered to be reversible (by demolition). I found myself finally coming round to realising that the injunction wasn't the thing to go for. Party wall surveyor has since conducted a preliminary site visit and agrees too late to bother with injunction anyway.

Party wall surveyor recommended a really 'decent' solicitor. I had said to him that the judge was really decent, what i wanted from the solicitors but didn't get....Turns out the solicitor he talked to was my judge! Have been therefore referred to his colleague.

Have read the Party Wall Act, the neighbours have basically ignored it all despite me telling them to read it. Their entire extension is within 3m of adjoining boundary wall. They did excavate right up to and don't forget demolished part of the wall with no PW notice or agreement. They are supposed to pay for my PW surveyor but that's is only if they serve the notice and comply. They are not serving the notice so i will have to pay for the surveyor and maybe claim back in court.

The land registry have confirmd no overlap of boundary on offical plans for both properties so i do not know if their title plan was a fake! They are therefore trespassing and encroaching on my land.

The conservation officer had told me on numerous occasions that even if the listed wall was demolished it was most likely that the enforcement team would consider the matter not expediant to pursue. CAN THIS BE RIGHT? WHAT'S THE POINT OF THE LISTED BUILDINGS LAWS IF THE ENFORCEMENT OFFICERS DONT DEFEND THEM. The planning office who are responsible for this cock-up even had the nerve to point out that if they did pursue the reinstatement of the wall, it would be me they would hold responsible. So they let the neighbours destroy it through their maladministered planning approval, I am meant to cop-it because i am the owner, they get sent the listed building consent form....UNBELIEVABLE.

I am not sure if i can even pursue the listed building breach as apparently it is a public offence???
Likewise the damage to my trees also isnt something i can pursue????

So stress of impending injunction has gone but i face having to take neighbours to court as they don't think they need to negotiate

Recently also dawned on me the issue of if i ever wanted to sell...not gonna be able to until this is resolved as the boundary on ground currently is not as it should be and was on the 'true' title plans

Does anyone have experience of when the enforcement team don't want to enforce listed building consent breaches and what i can do to ensure they dont sweep this planning department disaster under the carpet?
Can i involve English Heritage/enforcement officers nationally? Couldn't the enforcement officers block the development of this extension if they wanted and especially as the planning department have admitted their faults in their reply to my complaint?

Unfortunately i don't have legal cover on my building's insurance.
Have looked at gardenlaw forum but will look again as have read so many different things! Problem is party wall act requires the two party's to communicate in order to start doing things the right way, they just want to finish their build!

Thankyou for the comment about sensible action so far, i tell you i must look like a fruitloop, i think this whole thing and how the neighbours have kept going has just really shocked me! It has been hard to concentrate on work or anything else. I only hope i can just do the little bit everyday approach and get some normality back. I really hope the catalogue of breaches will mean the case will be quick and successful but i better not hold my breath!

Amber
Many thanks to anyone who manages to get through this post and for replying!

 

[Gervase]

Bloody hell! What a catalogue of disasters. I can't offer anything constructive myself, but will have a word with the memsahib (who is a solicitor), and see if she has any thoughts.

 

[yamin]

this sounds horrific! How awful for you to have to go through. I have no expertise, so just wish you luck, but can't work out from your posts how frosty things have reached with your neighbours. Their breach is clear - but is there any way you can sit down with them for a good old chinwag about a compromise, at least, that doesn't involve all the solicitors fees and headaches? If there are certain aspects that can't be 'undone' now, it may mean you trying to make the best of what the situation is and trying to get them to be reasonable and meet you halfway. This is if you can't get the whole thing sorted by the methods tried so far.

All the very best

 

[JohnB]

The land registry have confirmd no overlap of boundary on offical plans for both properties so i do not know if their title plan was a fake! They are therefore trespassing and encroaching on my land.

While trying to sort out my very different problem, I've come across something curious about title plans. The one I downloaded from the LR web site shows a boundary in a different place to the plan the LR provided in reply to a solicitors enquiry. I think the plans also use different versions of an OS map. In my case it makes quite a significant difference to working out exactly where my boundaries are. I think I saw some wording to the effect that only a plan officially produced as the result of a request is guaranteed to be correct.

Could it be that you and your neighbour are using different plans? The LR may confirm there is no overlap, but if one, or both, of you are relying on a downloaded title plan, the plan could be wrong. It could be worth requesting an "Index map plan" that covers your property and adjoining ones. I don't know if you can do this, or if it has to be done through a solicitor.

I'm no expert in this, I've just pieced it together from the experience I'm having!

 

[Gervase]

Some comments from a solicitor with experience of planning law:

It sounds as if she's taken the correct action so far, but her solicitor hasn't pressed the matter with sufficient urgency. She should press on with the application for injunctive relief with the utmost expedition and if her present solicitor won't do this get another one on, if possible, personal recommendation.

A few random points which occur to me:

1. Planning authorities are not concerned with land ownership when considering applications so that someone can obtain planning permission affecting someone else's land but a statutory notice but first be served on the owner. It's not clear to me whether this was done, or done properly.

2. If, indeed, the local authority has cocked up determination of the application, they are susceptible to an action for judicial review although, as the procedure is by way of an injunction, and an application is already before the courts, this may be a bit pointless. If work has already started/finished, the court's approach tends to be to award damages. Local authorities have power to revoke planning permission although they rarely do so voluntarily since it means that they have to pay compensation to the applicant.

3. If, on the other hand, it can be shown that the building works have encroached onto her land then an action in trespass may be made, coupled with an application for mandatory relief ie to compel next door to remove the works so far as they affect such land. This will also include a claim for damages. Injunctive relief is, of course, discretionary, and you'll remember that 'delay defeats equity' so that, as I say above, she must get on with it.

3. If the local authority has failed in it procedures (which they appear to admit), then she must get in an application to the local government ombudsman as soon as possible. The application form is reasonably straightforward so she can do this herself but remember that she must make sure that she's marshalled all the relevant documentary evidence to submit with the application. The ombudsman may award compensation and request the local authority to take appropriate action to remedy the damage.

4. If the local authority has admitted that the procedure was faulty it is possible that the planning permission is ineffective so that they may start enforcement proceedings coupled with a stop notice. They're not likely to do this voluntarily since it would lay them open to an action for damages by the applicant.

5. On the listing point, I very much doubt that the wall is listed on its own but rather that it's part of the house listing. In the circumstances, I think it very unlikely that the national bodies will be interested given that it's only Grade II.

6. She should also make an application to the Land Registry for rectification of the Register if she has good evidence that the land belongs to her house. The wheels grind a bit slowly with this but, again, she could do it herself, with help. The hearing is held locally, and is reasonably informal. The problem is that, logically, this should be done first as a positive finding would obviously be very good evidence in the injunction application as to the status of the affected land . Unfortunately, for the reason mentioned above, I don't think she has this luxury.

Edited to add:

I forgot to mention the obvious that it is, of course, essential that she obtains independent evidence of land ownership/occupation from eg other neighbours/former owners of her house.

 

[wolfpaw]

Sartre was right: Hell is other people. My sympathies.