Plannig permission stipulation

[BettySwallocks2012]

Hi,

We have been granted full planning permission for a house after 5 yrs of wrangling and taking it to the Planning Appeal Commision... However, it has been granted with a condition / stipulation as follows .... "the dwelling shall first be occupied for a period if 5yrs by Mrs XXX and any partner and dependants residing with her"

This is proving to be a MAJOR hurdle in trying to get a mortgage to fund the build.

Does anyone have any advice ie any way round the condition, specialist mortgage lender or any words of encouragement as it is starting to really grind me down.

We really want (need to, due to personal circumstances) but we can't get over this obstacle as so many of the regular lenders have said a straight "no" and unfortunately are not in a position to build without a mortgage. We "only" need £95-100k and have good credit ratings etc it is only the condition holding us back....

The house was granted "for personal and domestic circumstances" ie a disability that requires specialist accommodation. I don't see how it is enforceable either but it's the mortgage (or lack of) that is the sticking block as all lenders so far can't see past the 5yrs. Their reasoning is if we default on mortgage, house reprocessed then they can't sell it / let it until the condition has expired which they are not willingly to take the chance on even with a guarantor for the 5 yrs.

Any advice would be very much appreciated, thanks

[maxmissie]

If you are in England you can apply to have a condition removed from a planning permission and/or you can appeal against the condition having been imposed (although in England you can only appeal within six months of the date of the permission being granted although you can apply to the Council to have it removed at any time and then have a right of appeal against their decision if they turn you down). Not sure what the rules are elsewhere, you will have to check. I would guess that it might be difficult to get the condition removed though as presumably the house was only granted due to your 'personal and domestic circumstances' and would presumably not have been granted otherwise, therefore that is why the condition has been imposed. You could discuss the issue with the Council first and see what they say.

It isn't that common to impose such conditions but it is standard practice where there are special circumstances justifying granting planning permission where it wouldn't normally be granted. It would probably not be that difficult to enforce from a planning point of view as it probably wouldn't be that hard to find out who was living in the property and enforcement action could potentially be taken against someone living there who wasn't the person specified on the permission as well as the owner and anyone else with an interest in the land, e.g. the bank if you have a mortgage.

No advice re the mortgage issue, sorry!

[skandi1]

The problem with the mortgage is that from the banks point of view they could not repossess the house in the event of none payment for the first five years on the basis that they would be unable to sell it to someone as no one other than you and you DH and family are allowed to live there during that time period.

This means the bank does not have a secure asset against the loan. Hence the problem.

I think you need to appeal. It a very unreasonable stipulation on the basis firstly that it prevents you entirely from securing ANy finance on it. Secondly because your circumstances could change ie (this is worst case) you or your DH could die and your relatives would not be allowed to take occupation of the house or be able to sell it because no one else would be allowed to live there. What if you divorce and remarry? Your new DH would not be dble to live there.

It's the most unreasonable condition I have ever heard of and I honestly think you could easily have this overturned at appeal.

[tricot39]

The eco building society take on unusual building projects but no idea about unusual conditions.

Sorry you are having this trouble. It sounds like you would not have got permission if not for your disability requirements. What is it you are doing? There are planners on this thread - try mistlethrush (?) if she doesnt appear here soon.

Good luck

[tricot39]

Forum not thread - doh

[tedglenn]

I assume from your reference to the PAC that you live in NI.
Your options are limited really to appealing the condition by virtue of an application under Article 28 of the Planning (NI) Order 1991. DOE (formerly Planning Service) may allow or refuse your appeal, depending upon its merits. If they approve it, you will be granted a fresh planning permission without the condition referred to. Instead of seeking to remove the condition you could suggest wording to modify it, in a way that might continue to satisfy DOE and your potential funder(s). This is potentially less 'high wire' than seeking its outright removal, particularly since DOE opposed the application initially and will probably not have been pleased that PAC granted it on appeal. If DOE refuse your A.28 application, then its back to the PAC with a fresh appeal. If DOE drag their heels determining it, you may also be able to appeal it on the grounds of 'non-determination' after 8 weeks from validation. You can see whether your appeal (or initial A.28 application) is likely to be successful by searching for similar appeal decisions on the PAC website where they have details of all similar appeals (i.e. permissions granted to persons, not the land) listed. You can also cite other successful appeals (or precedents) in your A.28 application and, as required, appeal grounds, if it comes to that.
Don't expect any of this to be quick. DOE are, in my experience, the slowest and least efficient planning authority in the UK (and Ireland).
Given this, and the importance of the issue to your life, I would suggest using a one-man ban planning agent (MRTPI) to fight this for you as it is probably not a job for a layman. Look at the successful appeal decisions (if any) relating to your specific issue and see who acted for the party concerned.
All the best.

[tedglenn]

The above was posted by my DH, not me. Hope it helps!

[BettySwallocks2012]

Thanks all, it is so encouraging to to read that others think the stipulation is unreasonable :-/

Ted, please thank your DH ever so much! I will approach our planning guy who incidentally is MRTPI reg, and yes we are in NI. Could your DH perphaps suggest alternative wording to modify the condition as everything we have tried to come up with just doesn't sound right. Does your DH work in planning in NI and have any experience with condition being altered? Sorry so many questions but we really are past the plan a, plan b and plan c stage and really are clutching at straws :-( They really have just between hell and a very hot place ATM.

Thanks again

[tedglenn]

TG's husband here again.

I would try to tack on the following to the existing condition "...save that in the event of default on the first charge on the property prior to or during its first five years of occupation, this condition shall cease to apply in its entirety"

The condition is not workable - it makes no sense to limit occupation for 5 years for what I presume is intended to be a permanent structure (i.e. not temporary) and then impose no restriction in perp. There are countless examples of condition appeals on the PAC website - have a look for some precedents.

When you make your appeal (I'd appeal immediately 8 weeks have elapsed on non-determination) as DOE will do nothing with it, provide written evidence from funders that confirm they would lend, but for this condition.

Your planning advisor should be able to construct this case. Not cheap, but if you want a result speak with either Gary McGhee of Carson McDowell or Karen Blair of Cleaver Fulton and Rankin - who can sort this for you.

Regarding finance - I'd speak to people who get finance for agric tied dwellings - a limited (but not quite as limited) market as yours.