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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 11469
Experience:  I have been practising for 30 years.
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I have the upper part of a two storey Maisonette and my

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I have the upper part of a two storey Maisonette and my living over looks both the upper & lower maisonette gardens my neighbour has built a rear extension which not only obscures the view of my garden but the height and the width of the build encroach on my property by 6inches & 18inches respectively.
The council approved the building plans despite being shown photographic evidence of the encroachment and member of the Councils Planning department visiting the property.
What if any legal action is there that i can take and who should i take it against my neighbour or the council.

Hello for clarification - what do you mean by encroach?

is the extension actually on your land?

Customer: replied 9 months ago.
Not as such the extra 6inches & 18inches are built up on to my property Sending photos which hopefully will explain it more also send photo of current view and previous view before extension was built
Customer: replied 9 months ago.
what is your expert advice?
Customer: replied 9 months ago.
Hello are you still there ?
Customer: replied 9 months ago.
If your not going to respond I'll have my money back.
Customer: replied 9 months ago.
Are you available for online conversation?

I’m afraid this isn’t a chat service, it’s an email reply service so therefore, we may be delayed getting back to you because we have clients and travelling and other users and it takes time to formulate reply in any event. I apologise for the delay therefore.

I have the photographs but some of them appear to be inside the property and not relevant.

I can see what you mean by the loss of your view but I’m not certain where the encroachment has arisen.

If you could explain exactly which photographs show the encroachment and where it is, that would be really useful please.

I see that you requested a telephone call and I’m quite happy to call you but it would assist me if I had the extra information.

At this point, I can tell you that your loss of a view is not actionable. There is plenty of case law on that already I am sorry to say.

In respect of the encroachment, I appreciate that you raised this with the local authority but they will not deal with trespass issues, just the actual planning itself.

As the property has now been completed, and it’s unlikely that a court is going to order it pulled down and rebuilt because it would have expected you to have raised this issue long before now, what result is it that you are actually looking for?

Customer: replied 9 months ago.
The encroachment occurs if you look at the photo you will by air vent block which the first rung has been cemented over you seen in the photo taken inside that the air vent brick is raised 62inches from the floor thus meaning the roof of the extension has been built on my property, Re other photo of landing window you will see the gap from windows to floor is 18inches the photo taken outside clearly shows that when I open the window I can place my hand on the roof ! What I would like to know can I sue the Council for approving this application despite knowing it was being built on my property or my neighbour for building on my property without my permission?

Thank you. I see the airbrick now. You have no action to bring against the local authority. They don’t deal with matters of trespass although to be honest, I’m not certain that there is any trespass here. It’s a bit of an eyesore, admittedly, but that’s not actionable.

You may have an action against the person with the extension but it would depend on the terms of your lease (I assume it’s leasehold because it’s a maisonette), the terms of the lease of the downstairs property, and the view that the freeholder takes on this.

There is no such thing as vertical trespass.

If you equate this to your next-door neighbour, your next-door neighbour doesn’t trespass purely because they’re building runs alongside yours.

Anyone who owns the ground owns everything above it so it wouldn’t matter whether this extension actually came just under your windowsill. There are other issues however such as blocking the airbrick which is a different thing altogether.

You say that this has been built on your property without your permission. Is your property leasehold and are you responsible for the structure of the building and the maintenance and repairs of the structure or just the internal parts?

Customer: replied 9 months ago.
property is leasehold and both upper/lower maisonette owners are responsible for the structure of the building and the maintenance and repairs of the structure.
The Leaseholders have been informed and part of the leaseholders agreement is that no alteration externally to the property can be made without the leaseholders permission and despite not giving permission there response was the council approved it .

Thank you. This is not a matter for the council. Doesn’t bear fruit, make a complaint to the Local Government Ombudsman but being brutally honest with you, I don’t think that either of those would produce a result for you.

Here is the link to the Ombudsman fortunately, it’s free: https://www.lgo.org.uk/make-a-complaint/how-to-complain

It is trespass because whilst he is entitled to build up as far as he likes and could build a skyscraper block (you would potentially have an action against him for blocking your light but that’s a different issue) he has no right to attach in any part of the building which is within your lease and you say that includes the structure and therefore, the flashing between the buildings where as set it into your building is without consent and its therefore trespass.

It is not the height which is the problem but the fact that he has joined into your building.

Because you have allowed this to go on, it is unlikely that a court would order it to be removed but what it is more likely to do is order the owner of the downstairs property to pay you compensation in respect of the trespass and expose the air brick completely not because of the building passing the air brick but because of the potential claiming negligence by the removal of the ventilation from the property.

Check your house insurance to see if you have legal expenses cover that would pay the costs of dealing with this

Can I clarify anything else for you? I’m happy to telephone you if you still want to speak.

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 9 months ago.
is there any point of law reference I can use when submitting my complaint to the ombudsman ?