Listed building retrospective planning permission: solicitor's computer says no

[Venusflytart]

I am in the process of buying a grade II listed property, offer accepted April 2021. It is immaculate in its presentation, and a listed-building survey confirmed it is structurally sound. I have had some trouble engaging with my (online) estate agent, as they seemed EXTREMELY reluctant to respond to my queries either via email or via a phone call. After sending them a slightly irritate email last week they finally explained the issues.

The building was extended some time ago (in the 1970-1980s presumably) and a separate garage was built. Neither have planning permission. The sellers have taken out indemnity insurance and claim these issues were not a problem when they bought the property about 10 years ago. They bought with a mortgage, and were not cash buyers.

My conveyancer states that they should seek retrospective permission for the alterations and state that my mortgage lender will not agree to me buying this property without the required consents in place.

The sellers do not wish to seek retrospective consent, stating this will take months, and it will invalidate their indemnity insurance, they let us know officially via their solicitor. So I am stuck now. The sale of this building has fallen through before late last year )presumably due to this issue?)

The sellers' estate agent (who I am aware don't work for me) say that I should jus drop this conveyancer and get the conveyancer who arranger the sale when my sellers were buying this place, as the situation was unchanged then. I could then just take on indemnity insurance and continue like apparently people in this house have done for the last 40 years.

I am ready to walk away, but I was wondering whether this is really such a big issue, or whether my conveyancer is just really by-the-book? Surely this sort of thing must come up a lot, otherwise why would indemnity insurance exist? Or does that not cover listed buildings? BTW, the solicitor doesn't get paid if the sale doesn't go through, so they are advising against their own interests. Thanks for your opinions and/or advice!

When we bought a Victorian house a few years ago, a small extension had no planning permission. The seller (who didn't put it in) took out indemnity insurance, and our conveyancer was satisfied with this. Not sure if it's different for listed properties though.

Good luck sorting it out and hope you can still proceed with the house 😊

It’s probably more an issue with listed building consent. There’s no time limit on possible prosecution for alterations without LBC. And the responsibility rests with the current owner not the person who did it

In theory, you could, at any point in the future be heavily fined (even jailed) and made to undo the work that was done without LBC. I mean it’s unlikely. But it is possible

@Handsnotwands you're referring to listed properties rather than all properties right? 😱 I hope!

The vendor has a problem. Don't buy it with the indemnity insurance and make it your problem!

It is a tricky one. I live in a city famous for its high proportion of listed buildings. "Bodge job" refurbishments/extensions/ripping out fireplaces etc seemed a popular thing to do in the 70's.

Based solely on being nosey about what my near neighbours have rebuilt, the local planning office seem to usually take the view that they will overlook something done 30 years if the proposal is an enhancement. We're only grade II (they might be stricter with the key buildings).

It might be worth seeing when the property was listed (ours was mid-70's). historicengland.org.uk/listing/the-list/

Handsnotwands is right, I think it is a listed building consent issue.

That said very many, if not most, listed buildings have additions which did not obtain listed building consent. This is partly because the LBC system is ridiculous. I've just spent £4k on fees to make a submission for £2k of work. Still waiting to hear six weeks later and it's a no brainer as it is effectively a small structural repair.

The sellers are right saying that retrospective permission possibly will not be granted, will take forever and will invalidate the indemnity policy.

Things to consider:

1. How important is the extension to you? My house also came with a UPVC conservatory (undoubtedly no consent), but I took the view I'd be demolishing it in a few years anyway.

1. Will your mortgagee object?

1. Your conveyancer does sound very pedantic. In reality if you can get a an indemnity policy for the full value of the house (usual) then this is a practical solution. It is very unlikely you will ever be challenged on the extension but if you were you have a good sized fighting/remediation fund. I would go ahead if you love the house.

Yes, I'd be worried about what you can actually indemnify against. Financial cost of making good / devaluing of property by losing the extension, all OK (iyswim!). But actual prosecution, I can't see how you can cover that?!

There is potentially a good deal of risk here.

The indemnity insurance will only pay out for the fine you may receive and the cost of tearing down and putting right the non permitted work. It won't pay out for the loss of value to your home created by removing the extension.

This is why you won't get a mortgage. If you take out a mortgage for say £200k based on the value of the building at present, then have to knock down half of it you would potentially be in enormous negative equity.

Bottom line: How much value/enjoyment does the extension bring? Would you still buy the house for the current price if it wasn't there?

Thanks for your responses, very useful to get some different perspectives. I lived in a terraced property before trying to buy this new property, and the old property also didn't have any permissions for the extension, but no one seemed to care about that. Effectively PragmaticWench is right, the vendors are making their problem my problem.

But, as Handsnotwands and justchecking1 mention, as the building is listed, the situation is different and I could be prosecuted potentially, although I think the risk is very small. See also my diagram. When they extended, they knocked out the back wall, and doubled the space, and added a partial new roof as well. This is not at all obvious when you are in the space. And cannot be knocked down either, as the house would be effectively demolished. It used to be a shop in the 19th century, and set up as such.

I ended up turning here as my solicitor is very pedantic as mentioned, yet is unable to engage in communication with me for some reason. I have asked him TWICE now whether he has confirmed with my mortgage lender whether they definitely do not agree to me taking out an indemnity policy like my sellers have done (and they had a mortgage), and he has not replied.

I've talked to my mortgage advisor (as he communicates with my lender for me), and he's said his hands are tied and my legal representation (solicitor) should talk to my lender directly. I think something is going on, where the solicitor does want to be seen inquiring with the lender directly as that would make them look bad. I am wonderign whether I should just contact my mortgage lender directly?

I'd bat it back to the vendor to resolve, but you may need to be prepared for them to pull the plug.

Or is there a way you can get some sort of retention on the property e.g. your seller agrees to pay the cost of "making good" in light of any PP requirements. So £10k of the sale (for argument sake) is held my your solicitor until PP has been authorised, but if there is a cost to rectifying that retention should cover all/most of it?

It could be the costs are too high to make that worth it

Usually retrospective permission doesn’t take very long - or at least it never used to. Our house is listed, it used to be two cottages and when we bought it it transpired that there was no permission for knocking them together. The vendors applied and it came through in a matter of weeks. An application for retrospective permission would be the best and easiest way round it.

It all sounds immensely frustrating. I feel for you.

That is a massive alteration to do to a listed building without consent. I used to work in this area, while it is unlikely we would have prosecuted after this amount of time unless it's Grade I, if a retrospective planning application came in it is unlikely to be a tick box exercise. There is no way on earth I'd be buying it, and I say that as someone who has a degree in conservation of listed buildings and worked in the field for 15 years so I probably know a little more than the average house buyer although granted I don't work in this field anymore. They need to get retrospective consent signed and in place, but unlike planning for non listed properties it will never because permitted by virtue of how long ago it was done, the council could at any point realise the damage that has been caused and decide to take action to make good the building. At best that will be expensive planning and building regs approval.

You will have these same issues when you come to resell, it may be very hard to get a mortgage on a property without the correct consents in place, in short I wouldn't touch it with a barge pole. Listen to your conveyancer.

The vendors have made it clear through their solicitor that they will absolutely not apply for any sort of permission. They seem to indirectly invite me to pulll out at this point. This is understandable, but I think it's a bit of a gamble for them, as they might have a similar situation with the next buyer.

I would only go ahead at this point if I could apply for permission myself once the sale is agreed, but I can see that any mortgage lender would not agree to lending £££ on something whether the owner is presently in violation of listed building requirements.

In sum, I think I should let the house go, it's a real shame, especially as it is 99% likely none of it will be an issue in the future. On to the next house... Thanks all!

VikingsandDragons I posted before your post appeared. Thanks for your insights, that is what I need to read/hear and not cling to my "what if I did X" daydreams.

I think there are huge risks here because it is listed. Even if you or they apply retrospectively it can be refused and prosecuted. I wouldn’t go near it unless they take the risk of applying and consent is given.

that is a massive extension on a listed property - I also would not go near it unless they apply for the retrospective permission! But it is worth trying to contact your lender to see what they think? I would be really worried about the council picking up that extension and causing problems!

(fwiw we are buying a non listed one now with extensions without permission but we know the council are less bothered and we have not even asked for indemnity insurance as we are likely to put a planning permission notice in anyway and it would render the indemnity ineffective - we have to take the risk that we might have to knock them down but we are comfortable with that risk. We had extensions done on our old Grade 2 listed cottage but before we sold, we had to get every single letter of consent and sign off that it was approved otherwise I don't think we would have been able to make the sale!).

The listed buildings department may agree to regularise the work (essentially retrospective permission) but like others have said, you’d be liable to put it right if they decided not to approve. In your shoes I would try to talk to someone in the Listed Building department responsible and talk to them about it. Show they the photos on RightMove and be totally up front and ask their opinion as to whether it’s something they might be prepared to regularise or not. You’ve nothing to lose and if they are not happy, they may pressure the seller to put it right/sort it out before any sale goes through.

Umbel,I considered doing that as well, but if I did, I would make the department aware of a violation and get my sellers in trouble potentially (and at the very least invalidate their insurance). This is also why my diagram does not depict the actual situation, but it is similar in the scope and size of the extension (I really don't want to get the vendors in trouble in any way).

I think the sellers probably (like me) did not understand the severity of the situation. BUT: it looks like they still don't as they have been extremely stubborn and have repeatedly stated they are not willing to apply for the required permission. I'd happily wait for them to do them, even if it took over 6 months, if they only showed a shred of flexibility. But they don't so I will have to pull out, unfortunately. Perhaps they will see sense and apply now, once they find out they're stuck unless this issue is solved and they are actually in a vulnarable situation as well, as the next buyer might actually do as Umber suggestst.

I found it was remarkably difficult to get proper information and advice out of anyone regarding this situation due to all the conflicting interests (sellers' estate agent said it was not an issue and I was mad to worry about it, solicitor refused to interact because of ???, mortgage advisor's hands 'were tied'). I think my solicitor could absolutely have been clearer. But he was probably not that keen since he would not be paid in any case. But I have used his firm in my last three exchanges (where I did pay their fees for buying/selling!), and won't be using this firm anymore due to his lack of engagement. Which is also a shame, as they were excellent before I had to deal with this person (even during the stamp duty holiday and COVID). I will make that clear in my feedback.

@umbel

The listed buildings department may agree to regularise the work (essentially retrospective permission) but like others have said, you’d be liable to put it right if they decided not to approve. In your shoes I would try to talk to someone in the Listed Building department responsible and talk to them about it. Show they the photos on RightMove and be totally up front and ask their opinion as to whether it’s something they might be prepared to regularise or not. You’ve nothing to lose and if they are not happy, they may pressure the seller to put it right/sort it out before any sale goes through.

Where there are indemnity policies involved, you have to be incredibly careful who you tell what to.

Not sure if I've missed it, but are you absolutely sure the works were done after the listing?

ViperAtTheGatesOfDawn I am not sure (it is part of the problem that no one has any record of when they were completed), but it is likely according to the survey I had done.

@BlueMongoose why? Isn’t that what the sellers insurance is there for? I can see how if THEY raised it, their insurance wouldn’t pay out, but surely it would if trouble came knocking. That’s what it’s for. Anyone can raise a concern about alterations to a listed building. I take the OPs point about not wanting to get them in trouble, but she owes them nothing and she has a right to protect her own investment if she wants to buy, surely?

I'd bow to knowledge of people like @VikingsandDragons but was about to ask the same question as @ViperAtTheGatesOfDawn - it could matter a lot about the dates.

I recently got excellent, free advice from the Society for the Protection of Ancient Buildings advice line as we had no buildings insurance but it isn't clear from any agency whether our house is grade 2 or 2 listed. The reason I've come on here is to say that in our case, as our house used to be part of a definitely 2 listed building, and the listing took place before the buildings were blocked off/separated, we should consider ourselves part of the 2* for insurance purposes. So the date of a listing and the date of any works in your case could be very important. I'd highly recommend one last ditch attempt and speak to Spab

Because of this thread I now also realise it might be difficult to switch mortgage lenders, as this issue might come up every time a new valuation or survey is done (unless I am mistaken). This situation could recur every 2-3 years for the next 20 years before the house is paid off! Looks like I dodged a bullet here and the 2k spent so far on buying this house were the price I've had to pay to dodge that bullet. Hopefully this thread will also be useful for others trying to buy a listed building in a similar situation.

Our house is G2 listed and conveyancing was long and painful checking all of the work had the correct LB consents and/or PP. We ended up with an indemnity for some of the windows on the rear elevation because no-one could find the final LBC document despite the mound of paperwork between the vendor, window company and heritage officers at the council.

The indemnity is for the full house purchase value rather than just the value of rectifying the windows. There was no attempt to get retrospective consent either despite the evidence that the changes had been approved.

Perhaps the vendor just can't afford the indemnity and that's why they are not willing to engage? But it seems strange to try and sell a G2 listed property without having thought of this lack of pp and consent being raised as an issue.