Previous owners didn't get planning permission and now we're being asked to change the house!

[fassbender]

Just looking for some advice please. We bought our Victorian semi in August 2012. It has UPVC double glazed windows and doors (except the front door)- the previous owners apparently spent a fortune on 'sash style' windows - they don't look like your typical plastic windows and look very in keeping with the Victorian house, they even have a 'grain' effect so they look like wooden window frames painted cream.

Anyway, apparently someone down the street wanted the same, applied for planning permission, using us as an example, and it turns out the council has obviously done a check on our house and the previous owners did not get planning permission. I have looked and there is nothing in the house info that we got through the solicitor saying as such, it says there is no outstanding planning issues and we thought it was legit as they are so sympathetic to the original windows.

We have today received a letter from the council saying that we need to replace ALL of the windows to timber sash style frames, unless the work was done over 4 years ago in which case we are exempt. The work was done April 2011, a year and a half before we bought it, so 3 1/2 years ago.

Does anyone have any advice?? There is no way in hell we could afford to replace all the windows and doors and we wouldn't have bought the house in the first place without the windows as they were as the heating bills would be extortionate!

I am waiting to hear back from both our solicitor and the lady who has issued the notice.

Thanks for any help/advice/experiences.

Practically the whole of our village is listed as a conservation area. We live down a side road. We had new windows two years ago. It's a fairly modern house. Nobody ever mentioned to us that we needed permission for windows. I'm not bloody changing them now. I doubt anyone would care tbh.

I would ignore it for 6 months and hope you get lucky. You could sue your lawyer though as this is clearly malpractice if they didn't highlight this to you. You could go after the seller only if they didn't declare they had changed the windows as part of the sale.

Good luck, what a nightmare!

Erm, if you know the previous vendors and you know the local company that installed them would there be any chance of... how shall we put it... obtaining some form of 'proof' that they were installed just over 4 years ago?

God I'm dodgy.

Well, if the vendor had ticked 'no' to the "planning and building issues" question, then they are not telling the truth and is therefore misleading. I would first try to resolve this problem with the council (not wise to ignore it) and if no joy, then consult your solicitors again (they were misled too) with a view of suing the vendor for the cost of replacements.

If the windows were put in by a reputable company then there should either be a building control application or a fensa certificate so difficult to argue on date of installation.

The planning consultant was a friend of my FIL, but you can find local ones pretty easily through google. Before you do that though, I'd check that there was an article 4 direction covering windows in place when the windows were installed. Being a conservation area isn't enough to block replacing windows, there needs to be a specific article 4 direction in place. Even if there is one now, there may not have been in 2011.

When you bought the house there wasn't by any chance some sort of indemnity policy re the windows? Our sellers paid for one (v similar windows on edwardian house) that they weren't able to produce the paperwork for. I'm guessing this sort of situation could be the one time in a million such an indemnity policy could be claimed on?

Thank you for the follow up posts and advice, we have been busy looking in to this! It is subject to Article 4 direction, but I am not 100% sure it was in 2011, so that is one to look in to as well. I have also mentioned to our solicitor (a new one, the previous one who dealt with out house move is now retired) about indemnity insurance and we are waiting to hear back. Stressful!

The vendors said yes and then put 2011 as the date. A bit further down the document it asks 'are there any planning or building issues to resolve?', which the vendors ticked 'no' to. So I don't really blame the solicitor as I wouldn't have expected her to follow that up as such

I would. Otherwise any vendors could just fib to their buyers about anythihng!!! That's what solicitors are FOR surely!! She should have known the house was in a conservation area, and that therefore the vendors were incorrect, and she should have then demanded the necessary documentation or an indemnity.

That said I don't know what solicitors actually do left to their own devices. Ive always been the insitigator in spotting all the stuff that might need planning/building regs/rights of way etc etc and then getting the solicitor to check. But the demands of what gets provided by vendor have always come from me. (Not saying that's what you should have done...I'm just like that).

You absolutely have a case against someone though, whether vendors or solicitor, surely!

I'm a conveyancer and your solicitor should have followed this up. It's basic law that any windows installed since 2002 should have fensa certificate or building regulations approval. Your local search result would have shown that the property was in a conservation area so they should have flagged the need for planning permission for the windows.

Solicitors firms have insurance to cover this type of error so you should look to them for compensation. Get it sorted.

I agree, it's the solicitor's job to check there are no planning issues outstanding. They were told the windows had been changed and when, they know it was a conservation area, they should have checked there was a corresponding planning consent.

Solicitor will need to claim on their indemnity policy.

I agree your solicitor should've been on top of this. That's what you pay them for.
When we moved in here the owner put in French doors without planning permission. Our solicitor got the previous owners to sign some sort of declaration stating that they had been put in x number of years ago- so we didn't need retrospective planning. It was a load of bollocks but we didn't complain.
The council may indeed insist you replace them. Depends on how stringent they are. I know of someone who had to do this when we lived in a conservation area- one of the neighbours phoned the council after a year or so, which was nice. If this happened you need to try and get the money from the solicitor.

I agree that this is a solicitor issue. Our property hah had some work done including conservatory and even our utterly crap solicitors managed to double check planning permission even though the vendors had ticked no to outstanding planning issues.

We are in a conservation area but no article 4 directive regarding windows. We checked with the council if we needed planning permission for upvc windows (replacing other upvc windows) and they confirmed we didn't. If your article 4 came in after the windows were fitted,I don't think the vendors had anything to declare and no permission would have been needed.

My councils planning committee minutes are on the website, I'd read through them for the past few years to see when the article 4 directive came in.

I didn't get planning permission for my UPVC windows - am in National Park. I was worried they wouldn't allow UPVC if I asked 'em. If I sit tight for 4 years, and nothing gets said will I be ok?

I think so. Our builder built our extension 30cm too long. The planning dept spotted this but have said they won't be taking any enforcement action (phew). He said we could either apply for retrospective planning permission or just wait for four years at which point it would be ok.

Absolutely do not ignore it!

If the planning department have written to you, that counts as the commencement of enforcement action. The issue has arisen within 4 years of the "offence" and so even if by the time anything happens, it is beyond 4 years, by identifying the breach within the 4 years it is as if the clock stops on the 4 years ticking by.

Any application by you for a certificate of lawfulness for an existing development would automatically fail since you cannot demonstrate that 4 years passed between the development taking place and the breach in planning control being identified.

The burden of proof would be on you to provide evidence that the development occurred more than 4 years ago. Anyone proposing that you lie about it is advising a risky course of action - you have evidence that suggests that the 4 years had not in fact passed when the council wrote to you - the declaration from the previous owners AND the company invoice I assume.

I would advise you to enter into a discussion with the local planning authority about what should be done now. First of all, they should be able to proofed details of when the article 4 direction was made, because if it was done pre 2011 and the installation of the windows, planning permission would have been required. If it post dates the replacement of the windows, then you're in the clear. You could apply for retrospective planning permission which might be successful. If it is refused, you have the right to appeal to the planning inspectorate. They may take the view that the appearance of the replacement windows is satisfactory and would "preserve or enhance the character and appearance of the conservation area" and that retrospective permission should be granted. If the application is refused and the appeal dismissed however, you would be required to take remedial action following the advice of the conservation officer.

For that reason, I would have in the background a simultaneous discussion with your solicitor or the firm that dealt with the purchase, and the previous owners. Caveat emptor - buyer beware. I would actually think it's down to incomplete checking on the part of the solicitors you used at the time. If when you bought the property it was an article 4 direction conservation area, then the solicitor should have asked for relevant planning consents since the vendors identified on their forms that new windows had been installed not long before the sale of the house. They might feel (the solicitors) that they have been misled by the vendors and it is up to them (the solicitors) to take it further with the vendors if they end up being out of pocket for paying for the reinstatement of appropriate windows.

Good luck! What a nightmare for you.

It's really unlikely that the council won't pursue. Article 4 directions are quite onerous and not made lightly. As you said in your op, your windows are being used as precedent by other homeowners and if they just let it lie, it could end up with incremental changes to the character and appearance of the conservation areas as other homeowners follow suit. The council/lpa has to be seen to have the preservation/enhancement of the conservation area as a planning objective.

Perhaps you could write to the council stating that the windows were installed by the previous owners. Just state the date you purchased the house and wait for their response.

If the windows were installed by a FENSA contractor then the council will have access to the information and thus the installation date so don't try to mislead them.

If they weren't, then you are in even more hot water as the building control section will probably take an unhealthy interest as well...

As 'Pooka' has mentioned, 'Article 4' directions are usually created for quite specific reasons.