The planning authority is not responsible. They are concerned with the acceptability in planning terms without considering the legal questions such as you have. Your remedy is solely against your neighbour. As others have said you need to consider the implication of the Party Wall Act and the question of trespass if the building will overhang your property.
Peter Crosland
The neighbour is, I beleive, attempting to establish a "flying freehold" without actually paying you for that right. This is my understanding based upon a similar issue some years ago with a neighbour, the neighbour wished to build a roof that would have extended over the roof of our kitchen. Our solicitor sorted out the details and the work was ameded to ensure that the development was entirely within the property of neighbour.
Any planning application has to include a plan with a red line shown around the land in the applicant's control - ie, usually ownership. If the applicant does not own it, they have to serve notice to the actual owner(s) of the land in question under a section of the Town and Country Planning Act (1990). A recent case proves that any consent granted without this notice being served is void. It may be, some planning authorities do not worry too much over such detail. As far as I understand matters, they should be concerned over the legal points.
There is a very good reason the neighbour should not build such a 'trespassing' extension. It can come back and bite when he comes to sell the property. The purchaser or his mortgage company could well throw a spanner into the works at a most awkward time if this is discovered as it is likely to be.
Even if you decide to agree to it, it must be properly set up on a legal basis and you need your own solicitor to assist - it is quite reasonable for the other party to meet his fees. Do not rely on his solicitor to handle both ends - there is a conflict of interest with this.
This gives you a valid reason to discuss it with the neighbour in such a way as to do least damage to relationships.
You quite correct that some authorities do not worry too much about this detail. My local authority gave planning permission to my negihbour that would have resulted in him building 5 foot inside my boundary.
Regards
nemo2
Was the adjoining owner a councillor by any chance? :)
Excellent - what case?
If you want to cause trouble then you could try a flag pole, on the boundary line (with the top at a height to interfere with where the gutter is proposed).
However, it may be better to settle this properly and without discord.
:) Chris.
HS,
One word of warning, an ex-neighbour of mine built right up to the boundary and then engineered a boundary dispute to try and gain land so that he had access all round his building.
In the end, the case only went to court to settle costs as he dropped his case when the Expert Witness finally provided his report 2 days before the case was due to go to court. We were awarded 100% of our costs by the court (our barister couldn't believe that we got 100% costs), but it still cost us in the region of £10,000 taking things that you cannot claim like lost holidays etc.
Fortunately, most people are like by ex-neighbour who incidently was a property developer, but take care.
regards
nemo2
I'd offer to sell him some land, and put a good price on it, say 100K or so .......
I can't see it being the planning depts problem, its not there job to check who owns the land the building is intended to go on.
What I'd really do is talk to my neighbour, and if not satified, take up one or two fress consultations with solicitors, and then make a decision.
Rick
Thank you all for your input. I think I have obtained a better understanding of the issues involved, and for those of you are interested, the following is a summary.
The simple answer lies in the Town and Country Planning Act 1990. In fact the application form is quite clear on the subject (although the Planning Officer didn't advise me about this). The form contains a certificate of ownership under Section 66 of the TCPA. If the applicant is unable to certify (Certificate A) that "the development does not encroach onto neighbouring land or property (including footings, gutters, etc)", then he has to certify (Certificate B) that he has given notice to everyone who owns any part of the land to which the application relates. Well in my case, the applicant ticked Certificate A which was incorrect - he should have ticked Certificate B, having previously advised his neighbours that his proposed development would encroach on their land. It is only after he has served notice to his neighbours that they can consent or not to the proposed development, and as some of you have said this is a civil matter between neighbours - the negotiations can then start.
So my Planning Officer was not entirely correct to tell me that the encroachment is not a planning consideration - he should have picked this up and should not be proceeding with the application until it is sorted out. Maybe he would have picked this up on his site visit, but that will normally occur after the deadline for all objections has passed.
HS
But if the application contains untruths wouldn't that invalidate its approval?
Yes, with respect to the encroaching pieces.
However even if a neighbour does not object to such an encroachment for the purposes of the application, it does not give applicant an interest in the neighbour's land with respect to the encroachments.
The key point here is that the 'neighbour' effectively wants the Council to carry out his 'dirty work' in order to retain good neighbourly relations (this being a very important and noble objective) and avoid paying legal fees, and the Act quite sensibly mandates such an approach.
Not living in UK I was unaware of whether the UK Act had such a provision - the equivalent where I am also has a similar requirement.
Not necessarily: there are a number of law cases on this issue that come to different conclusions depending on whether it is blatant fraud or just an error. The best one is one where the applicant claimed to be the agent for the owner, got the PP and bought the land cheaply (the owner not knowing it had PP of course). The court held that the permission was valid but as he had held himself out to be agent for the original owner he must account to them for all the profit he had made!
The fact that you have permission does not, of course, give you any rights over land that is not yours and does not override any covenants or other legal obligations that may be relevant.
Perhaps the OP could consider applying to build a mirror image extension to his neighbour so that they meet and it becomes a semi-detached (ir terrace if already a semi). The resulting loss in value will probably outweigh the gain from the extension and should make his neighbour see sense.
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