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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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My neighbour a decking 6 years ago which raised his land

Resolved Question:

My neighbour laid a decking 6 years ago which raised his land level at the end by approx 65cm. How long must he wait before he has to stop worrying about being given a notice by the council to take it down. I have told him not to worry as I believe after 4 years he is allowed to jeep the structure. If this is the case how should he proceed with legalising the structure as he is considering selling the house.
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.

The enforcement period for outright planning permission is 4 years and for lack of building regulations 1 year. For change of use it is 10 years. Hence, this is out of time for enforcement by the local authority. What would normally happen is that he would be asked to provide an indemnity policy when he sells the property because that is the quickest cheapest and easiest way of dealing with it.

Alternatively, he can apply for a certificate of lawful use or retrospective planning permission. He may not get retrospective planning permission and the certificate of lawful use process is extremely convoluted.

Can I clarify anything else for you?

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Best wishes.

FES

Customer: replied 11 months ago.
Thank you for your comprehensive answer. The main reason I was asking is because we are in the middle of building a similar structure/decking although the last 3 metres of ours extends 1.5 metres above the jetty the other 5 metres is only 20cm above the original ground level. Our builder had said that because the decking is not connected to the house and is 5 metres away planning permission was not required. We were planning to apply for planning tomorrow for ours but had delayed because my neighbour had concerns about his structure. Just to clarify as all my neighbours are happy with my structure would I have to wait 1 year or 4 years before they would no longer be able to enforce us to take the decking down or obtain planning approval. Could I also ask would the council be within their rights to deny me planning permission if my neighbours have a similar structure.
Expert:  F E Smith replied 11 months ago.

If the neighbour structure has been there for more than 4 years without getting noticed, and hence, out of enforcement time, although there is no guarantee that if you applied for it, you would get it, the fact that the neighbour has this is going to be useful although not absolutely binding.

The council may not be too bothered about one of these structures but might not want a whole swathe of them.

The period for outright planning permission is 4 years so, if it doesn’t get noticed for 4 years, you are in the clear.

Just because it may be away from the house does not necessarily mean that it escapes planning permission because it depends on the exact extent of the work and if this involves raising the level of the land, the council will always look at it more closely.

Customer: replied 11 months ago.
Finally just to clarify, am I right in thinking that any structure built on your property which raises the ground level by more than 30cm requires planning permission.
Expert:  F E Smith replied 11 months ago.

It is indeed 300mm. This refers specifically to deacking.

http://planninglawblog.blogspot.co.uk/2014/05/earth-moving-for-garden-landscaping.html

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