certificate of ownership falsely filled in planning application. This is an offence isn't it?

[annoyednow]

The owner of the house next door submitted a planning application for a house extension. The owner sent in a drawings showing incorrect boundaries encroaching on my property. They filled in certificate A which states the applicant in the sole owner of application site. The form stated under this that it is an offence if it is 'knowingly or recklessly' filled in and successful prosecution can result in a fine.

There is no reason to assume my garden should be presumed to be part of their site. It is in my possession and my boundary fence is where it should. No solicitors letter or legal action is in progress. There is no official dispute. The only place it is claimed in in the maps submitted to the the council and the only place we were alerted to the claim. No one has ever said anything directly to us. Their 'surveyor' (who is not a charted land surveyor or boundary expert) has claimed in response to our objection that because there are overhanging eaves, they own everything under them on that side and this line then extends full length of garden, even where there are no eaves.

We got a charted surveyor and boundary expert in to investigate claim after we downloaded application and were is shock because we thought if they claimed it there may be some basis. It is baloney and their 'party wall surveyor' doesn't seem to understand party wall at all. He stated that as the eaves etc overhang our side, our chartered surveyors statement that it is our side of party wall would mean we must own their overhanging roof, guttering fascia/soffit etc.

It seems you can call yourself a 'party wall surveyor' if you have done two party wall notices. I wonder if this could include merely two party wall fences? They did not even bother to make sure the claim was done by someone with boundary expertise.

My question is what is the probability of this 'claim' being prosecuted. They seem to have used the planning system to test it, without risk, without any proper basis. They have not officially disputed it in any other way and never even mentioned it to us. They would have to pay for a solicitors letter and maybe have to pay our court costs if they had tried to legally challenge it. They have also shown area under overhanging eaves on public footpath other side of house, but that is for council and not my problem.

Does anyone know anything about this certificate offence? It was at least recklessly done as they have no other challenge to it and it is certainly not determined.

I'm not sure it would count as reckless on their part if they have consulted a professional even if that professional is wrong. Is the application in at the moment? Can you object and send in a copy of your deeds or the land registry info?

But it is not a boundary expert. The 'part wall surveyor' is an architectural technician. I am sure this is skilled within it's scope, use of CAD etc., but to determine boundaries? There is no mention or claim of ownership anywhere else. Yes, we objected. Inspector came out and on viewing from inside and out could see party wall (and boundary) was where our chartered surveyor (who is a party wall and boundary expert) said it was. They are encroaching on drawings and we anticipate a request to by council to issue certificate B instead of the one they issued.

Did the agent submit a misleading application in relation to ownership then. Is it not reckless to assert ownership that is not being pursued anywhere else? No surveyor came to look in our garden and our boundary fence is old.

The only dealings I have really had with the owner(s) other than saying hello is when they said they were planning to do an extension and would need to put builders in our garden. The man (they said they had both sold flats to buy the house) then said they were going to build on the boundary and the new wall would then be there for us to enclose on to. When I think of it, how could I enclose on a wall from 3 to 7 metres out if it was not a party wall and our side of it was not in my garden. Also, if they were claiming our garden, why would she say they would be putting workmen our side. The application with misleading depiction of boundary had already been submitted at that stage. Haven't seen or talked to him since and she had only been inside their house on a few occasions. Nobody lives there. She is only applicant on form.

I'm a planner, and in my 10 years experience I haven't once heard of a prosecution being brought against someone wrongly filling in Cert A. That's not to say it hasn't happened, I haven't got access to my case law database at home, but I would imagine it's extremely rare.

It is an offence under Section 68 of the Planning and Compensation Act 1991 with a maximum fine of £1000. Provided the surveyor has acted in good faith (it doesn't matter if your surveyor disagrees with him) and believed Cert A to be correct at the time of filling it in, there is no offence. In any case, you are not an unknowing party who has had a planning application granted without their knowledge. If Cert B is consequently filled in you have not been prejudiced.

This is fundamentally a boundary dispute, not a planning matter. Anyone can apply for planning permission on any land. Planning permission doesn't give them the right to build without having first satisfied their obligations under other legislation, such as the Party Wall Act.

In cases such as yours, all the applicant would be asked to do is fill in Cert B and serve Notice no. 1 on you and then the application would proceed. Any grievance you had over encroachment would have to be dealt with outside the planning system through other legislation.

Ok. What would reckless be? Is there a dispute? We haven't received a solicitors letter or any communication else. They have a guy who says on his notepaper that he is a party wall surveyor who doesn't seem to understand party walls. Is this in good faith?

I wonder if they will fill in cert B as it would mean they accept it is our property. Their guy doesn't know anymore about party walls or boundaries than the guy in the street methinks. He was a cheap have a go guy. I wonder where this is going next.

I'm not a lawyer so this is not an official definition, but common sense would tell me that 'reckless' would be something like thinking that the works might encroach, but not knowing for sure and proceeding to sign Cert A anyway without checking. All 'good faith' means is that at the time he signed Cert A he believed that the land was in his client's ownership. There is no requirement for him to establish this separately for himself, it is good enough for his client simply to tell him that (even if it later turned out not be the case).

Official deed checking, surveying, etc is only carried out if there is later a dispute. They may well not want to prejudice their position by filling in Cert B. They are entitled to continue to assert they own it if they believe this to be true. Boundaries don't always match up on deeds. Again, all the planners are interested in is whether your neighbour believes they own it - unless actual evidence is put forward to establish that they don't.

It is fairly common for a Cert B to be issued halfway through the application process when a previously unknown land ownership issue comes to light. Often the issue is raised by a neighbour who has been notified by the Council.

It might not be an official dispute but that is how it would be described by planners i.e. to differentiate it from an issue which could be resolved through the planning system.

The fact that they have used this method of claiming under the eaves on the public pavement is interesting though as I am curious what they will do. I took a walk up the road and there is no difference on pavement surface. What will highways say on that I wonder? Their house is flush with the pavement with a roughly inch thick concrete skirting on the bottom foot or so.

Highways are unlikely to be bothered unless the overhanging section is less than 2.4m above street level. In any case, your neighbours will probably own up to the extent of their footings under the pavement, it was just easier for Highways to put in a standard paving slab. This likely equates to any gutter overhang.

The skirting is vertical, on the side wall of the house, like a splash guard. Do you think they own part of the public highway? I have a garage opening on that road, access from end of my garden. I never thought I could own pavement. It has a foundation as well.

Under the party wall act, you can put footings under ground into a neighbours garden. It doesn't give you any ownership rights though. Just right of access for your footings. Neighbour can cut off your footings, if they want to put their own there, on their own property.