Garden office planning permission issue? FLATS not houses

[GardenOfficer]

Neighbours built a garden office during lockdown. They are leaseholders, council is the freeholder. It's in a conservation area. It does comply with the rules about being less than 2m high and less than 50% of the garden area. However my understanding is that because they have a flat, not the whole house, is that it is not automatically a permitted development.

I'm sure they'll have asked the freeholder for permission. However the freeholder then needed to apply for planning permission. This didn't happen.

I spoke in general terms to someone from the local conservation society, and to the council planning department (though it isn't an actual planning officer you get on the general phone line). Both of them agreed that planning permission should have been sought.

The issues are - firstly I think it deters the council tenant family in the upstairs flat from accessing their section of garden, which is the back half. Because they would have to be walking down the side of it. In fact they never use their garden. The conservation society person said this was exactly why planning would have been required, to prevent such situations as one flat dominating a garden / causing loss of amenity to another flat in the building (is that right?).

I'm the next-door neighbour and I resent having to listen to their business phone calls for 40 hours a week if I'm in my own garden, because the office has glass floor to ceiling windows so no sound insulation, and anyway they often have the door open.

I have now broached the subject with them and they have said they will look into it! What is likely to happen? I guess just that the freeholder will need to make a retrospective application, and probably it will be waved through? I do know that houses around here often have garden offices with no problem, but I don't know the situation with flats. Also, I guess now that they know of the possible planning issue, I think they would need to clarify/resolve it before they would be able to sell? Which they also indicated they would be looking to do at some point as the situation isn't ideal for anyone.

Thanks for any of your thoughts!

Do they have sole use of the garden? Have you complained to the freeholder?

Their garden is split in two. They have the front half. The upstairs flat has the back half of the garden. But they never use it. I think accessing it would feel awkward - but maybe that's as much due to the path not being fenced off, as it is the presence of the home office.

No, I haven't complained to the freeholder, which is the local council's housing body. I just spoke in general terms to the planning department without mentioning the address. I've only just raised the subject with my neighbours.

So really it is because you don't want to hear somebody talking whilst in your garden? Arguably even if you do insist on them applying retrospectively, hearing them on the phone probably wouldn't be reasonable grounds to challenge the application.

I live in a conservation area and I know that there are lots of garden offices now. and generally the Council don't care about the back as much as they do the front.

Of course a neighbour has the right to be talking in their garden. Just as I would have the right to listen to a boombox.

But a considerate neighbour would not be doing this with no thought for the gardens on either side.

As I said the issue is that they have a flat, not a house. So more people are affected. And the planning laws are different.

I may be on a hiding to nothing if I'm expecting them to have to pull it down, which is the outcome I would like. I honestly do not know what the outcome could be, yes the council might just regularize it, but then again it may be that it simply isn't permitted for flats. Fingers crossed and I'd be grateful to hear from anyone with knowledge of this area.

It is definitely allowed in the area I am for flats.

The reason flats don't get the usual rights re planning permission is because leaseholders don't own the entire building so permission from the freeholder is required - whether permission is granted will depend on the lease (and the will of the freeholder). If they've got their permission, the Council will decide on the basis of the usual planning permission rules. Conservation areas vary quite a lot in what they will and won't allow but it being a flat won't be one of them.

I've done the planning application form and it really is just a case of needing permission from those who legally own the building / land.

Another example I can give you - a flat we were going to buy (but lost out on) built a huge side return extension. That is permitted because they sought the permission of the freeholder.

I suppose I'm hoping that what they have done simply is not allowed because they have a flat and it is a conservation area.

I agree that the grounds of me being bothered by the noise, and now being underlooked from my upstairs side-return window, wouldn't be proper grounds.

And the issue of the flat upstairs from them being discouraged in accessing their section of garden by the presence of the office and constant use of the garden by the lower flat, probably wouldn't hold much water either. And it would need to be them complaining, not me, and who knows if they even care!

But is it within the footprint of their garden and access to the rear garden still allowed?

Also the size is within permitted use?

Rather than tearing it down, some sound proofing seems a sensible compromise.

It is not necessarily the freeholder who needs pp, anyone can apply for pp whether they own the land or not.

Probably your only hope is that it isn't in line with the conservation rules but as I say, they are often a lot less interested in the back of houses.

Our side neighbour apparently sought permission to build what was described as a "studio" in the back of her garden when really it was a flat. (Before we lived here) That got turned down because it wasn't in keeping with the area.

Flats do not benefit from permitted development under dwellinghouses. They basically have no permit rights at all and a planning application is required.

Being a split garden and the fact its encroaching on neighbours amenity in their gardens it may not get permission.

Report to the Councils Planning Enforcemnt team.

*no permitted development rights

Our messages crossed over. Thanks for your examples. Again I'm probably on a hiding to nothing here.

It's a Victorian neighbourhood and there are quite strict rules, BUT they mostly apply to what's visible from the street. There is no way of anybody from the street ever viewing this home office since it's mid-terrace and the houses are quite high.

I know that single-story rear extensions are definitely allowed here, even for flats. In fact their flat used to be a 1-bed, and the previous owners converted it into a 2-bed. Then these owners added the garden office.

So as you suggest, if they have the permission of the freeholder which they surely do, then there's probably nothing likely to happen. They are not sleeping in it and it doesn't have running water, etc. I just wish it wasn't there :) .

Re conservation area, does it impact the street scene?

From your latest update especially re the single story extensions I suspect it’ll not be an issue for the council or conservation officer.

Is it a house that's been converted into flats?

I don't have a clue about the likelihood of it being rejected and having to be pulled down, but pragmatically I don't think it would be the right thing to do. It's an office for the current occupier but the next occupier is just as likely to use it as a home gym, summerhouse or storage as they are an office.

From my perspective, the nuisance of office noise is 'normal' use of the property. If your neighbour had built the room as a gym and was using a second bedroom as an office with the windows constantly open, you'd not want them to get rid of the garden room. You're annoyed (probably unreasonably IMO) by your neighbours work, not by the room.

Thanks for your reply. Yes it is within the footprint of their garden. And yes the size is definitely less than 50% of the garden so within the permitted use.

Soundproofing would be difficult because it has floor to ceiling glass walls. Well, I guess they could always put in much thicker glass, but then the frames likely wouldn't allow that.

And then if they weren't allowed the door or a window open on a summers day it would be pretty unworkable unless they also got air-conditioning! Probably the noise aspect is not that significant in the scheme of things.

The upper flat do still have access to their rear garden in that it is not obstructed. It would just feel a bit awkward for them because they would be walking through what feels very much like the ground floor flat's private live/work space. Maybe they are not interested in their garden anyway and I guess these situations often develop when an upper flat feels cut off and discouraged from accessing their garden. Sometimes you see big fences erected so that the upper flat has a private pathway to their section, resulting in some loss of space and light to the ground floor flat. I'm not sure if that would be an option here; they do have seperate doors for access.

I have a split garden and it is definitely awkward. It is probably the thing I hate most about our home.

Thank you for your reply, this is what I like to hear :). Since I have just flagged the issue to the neighbours, and they said they are looking to sell before long anyway, I hope that I won't need to make any contact with the council myself because they will need to sort it out before a sale.

Though of course our interests are not the same, as their property would be less valuable without the garden office so they would of course argue for it to stay up!

So I'll need to keep an eye out for planning applications. They tend to go up on the lamp posts or trees in front of properties around here.

It's better than a communal though, don't you think?

Do you have the back half or the front half?

Yes definitely better than a communal - we have half down the middle and it is a very large garden (especially for London).

Thanks for your reply. Yes it's a house that's been converted into flats. They are leaseholders, and the other flat is council.

I guess I just don't like change! Of course I preferred it when the back of their garden was just a row of trees, and then when it was just a garden shed. But as property prices rise, and people have to pay enormous mortgages, I guess it's inevitable that people try to utilise their space as much as they can, even if to the detriment of their neighbours.

If there is a planning application you will be notified and prompted to comment as part of the consultation.

Enforcement action is discretionary for local planning authorities and will only be taken where it is a proportionate response to the breach and expedient to do so. Lots of local authorities resources are stretched out and as a result some enforcement matters aren't followed up at all or are followed up, but years later (before the 4 year deadline where it becomes free from enforcement).

Planning permission is often refused if the use of whatever is being proposed would cause a nuisance to other neighbours/loss of amenity.

@LIZS the point about needing to obtain freeholder permission before carrying out any kind of development is that the leaseholders may have breached the terms of their lease. This could mean the freeholder could forfeit the lease.

Yes I can imagine the council have more important cases to attend to. Thanks for mentioning the 4 year rule, which I didn't know about but have just looked up. It was built in summer 2020 so the clock has ticked to two years already.