Permitted development rights disregard rights of light

Permitted development rights take no account of a neighbour's 'rights to light'

Source: www.jcadesigns.co.uk

The UK planning system allows certain types of development to be made without the need to apply to your Local Authority for planning permission; this is referred to as 'Permitted Development'. Information relating to permitted development can be found on-line on the Planning Portal (Link). Planning applications often require professional advice in order to produce drawings, submit the application in the correct format, liaise with the Local Authority, all of which, in addition to the planning fee itself can prove to be expensive.  There is also the possibility that the application may receive objections from neighbours/local residents, which will be taken into account by the Local Authority when making a decision on the application. All of this expense stress and uncertainty can be avoided if the development is deemed to be 'permitted development'.

Whilst the advantages are clear for the party who proposes to undertake a project under permitted development, but what about the rights of adjoining owners who may be affected in some way by the proposed development?  For example, take a single storey side extension to a semi-detached dwelling.  The extension will be only 1.5 metres from the neighbour’s external wall (not the boundary), however the height of the extension will be 2.8 metres at the eaves (the junction of the top of the wall and roof).  Even though a new extension will impact on the available light to the neighbour’s kitchen windows, this is still classified as permitted development. The photograph below shows the new extension on the left hand side.

Source: own

Permitted development rights take no account of a neighbour's 'rights to light'. Therefore it is currently acceptable under UK planning laws for a development that does not require planning permission (as it may be permitted development) and is therefore deemed as acceptable, to adversely affect the right of an adjoining owner. This surely cannot be acceptable. Any adjoining owner who is affected in this way will receive little help or guidance from the Local Authority because as far as they are concerned this is permitted development and there is nothing they will do apart from unhelpfully tell you to complain to the Secretary of State (this is what happened to me a few years ago). 

All is not completely lost however, as there is a law that may provide a way of challenging 'loss of light' and that is the Prescription Act 1832.  If a new building/structure limits or reduces the amount of light available through windows and when measured the level of light falls outside 'acceptable levels', this could then be deemed to be an obstruction. If this is the case then you may be able to take legal action against the party who created that obstruction.

If you think you may have a case in respect of the above you must first think very carefully and weigh up the possible benefits of starting legal proceedings.  Do not be under the impression that if you are successful that your neighbour will be required to remove or make significant alterations to their development.  This is only likely to happen in extreme circumstances where the new building or structure has been constructed outside the requirements of permitted development, or has breached other statutory requirements.  The general outcome of cases of this nature is that the development will remain and the court may apportion a certain level of compensation for the general reduction of light.

In conclusion, in certain circumstances permitted development appears to disregard the rights of adjoining owners, and at present there is very little that can be done to stop this happening.  In a 'free' society like the UK this does seem to be unacceptable, and maybe it is now time for permitted development guidelines to be amended to close this loop hole.

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The Reality of Framework Agreements - Have You Been Framed?

Frameworks are generally poorly understood by Clients and are often not the lucrative cash stream that they initially suggest, unless of course you are one of the chosen few!

Source: www.zemaitis-uk.com

Under EU legislation all contracts from the public sector which are valued above a certain threshold (Link) must be published in the Official Journal of the European Union (OJEU, formerly OJEC). Many OJEU's advertise framework opportunities, and whilst working in Professional Practice, particularly as a Senior Manager I was often involved in preparing framework consultancy submissions.  

A framework agreement is essentially an ‘umbrella agreement’ which sets out the terms under which individual contracts (call-off's) can be made throughout the period of the agreement. Frameworks can vary in duration, however these are typically for a four year period. The principle of a framework is to establish and develop long term relationships between Clients, Consultants and Contractors etc. and to work together to achieve continuous improvement. This is measured in different ways, however the overriding objectives would be to improve quality, look for efficiencies and at the same time reduce costs.

An invitation to submit for a framework will only be given once the Client is satisfied that the Contractor or Consultant have the track record and resources needed.  This will be established from information submitted in a Pre-Qualification Questionnaire (PQQ).  The main submission will then require a whole host of different information relating to details of relevant projects, an organisational structure highlighting key personnel, health & safety policy and record, environmental credentials, numerous answers to all sorts of different questions and scenarios and obviously fees that will be charged. After assessment of the documentation and if successful, the Contractor or Consultant will be invited to an interview where eventually the Client will select a number (typically 4 to 6) to appoint to the framework.

Source: www.linkedin.com

Anyone who has prepared documentation for a framework submission, whether as a Contractor or a Consultant will be aware of how much work is involved. Typically, it will take a Senior Manager with administrative support a significant amount of time to pull the information discussed above, together.  When you consider the hourly rate of a Senior Manager and support staff, together with the bulky printing (if needed) and preparation of the documentation, the whole exercise is a real cost to a business, and is completed on the principle that if successful, there will be a continuous flow of projects for the duration of the framework.  This however is rarely the outcome.

The initial euphoria of receiving confirmation of an appointment to a framework is often quickly tempered with frustration.  In reality what tends to happen is that a Client will call off work disproportionately, with some on the framework being allocated a high percentage of projects and others being allocated very little. One factor that may contribute to this is the mandatory nature of the OJEU procedure which many Clients do not really want.  Having this procedure imposed on them means that they can no longer just invite those Contractors and Consultants who they have probably worked with for many years to tender for the framework, in fact by advertising through OJEU they are actually inviting submissions from all over the Europe Union, not just the UK.  Obviously, these 'familiar' Contractors and Consultants can tender for the framework, but will have to go through the same selection criteria as everyone else who applies.

I can think of a number of examples where my company (Property Consultants), were appointed onto frameworks, having attended numerous meetings, passed the submission and selection procedure, and then not given anywhere near the volume of work to justify the costs.  Clients do not always appreciate that part of the fee calculation is based upon the likely value of work that will be allocated through the framework. Therefore, a much more competitive fee can be included if projects of a reasonable value are called off to your company or organisation. Clients who 'throw you the scraps from the table', by allocating the odd small project here and there, do not appreciate that the fee that has been submitted will not work for this extremely low volume of work, however the fee is expected to honoured because this is what was tendered with the original submission.

There are two particular frameworks which come to mind, one with a Local Authority in the Midlands and one with a Housing Group in the North West, where my company were appointed onto the Framework, and when attending monthly framework meetings (which again is another cost to the business), it was clear that bulk of projects were being called off to the Consultants who had worked with the Client for many years. This was totally unacceptable, and despite some 'honest and frank' discussions with the Client, nothing changed. I am sure that this will be the same in certain situations for Contractors.  Consequently, my company took a commercial decision to be much more selective of which frameworks to apply for in the future.  
  
Frameworks are generally poorly understood by Clients and are often not the lucrative cash stream that they initially suggest, unless of course you are one of the chosen few!

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Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog. 

Women in Construction Symposium - Wednesday 10th February 2016 - Coventry University

Women in Construction Symposium - Coventry University 10th February 2016.- Please see below for further details and registration.

For ticket availability and information please contact carl.mills@coventry.ac.uk or Adelina Manea ab3283@coventry.ac.uk

For it's inaugural year this event is free!

Internal measured surveys - You have to draw the line somewhere!

Errors or omissions in a drawing can result in serious consequences which can manifest themselves into confusion and disagreement, delays, additional costs and ultimately disputes. These problems can be avoided by ensuring that those who undertake measured surveys are adequately trained and supervised.

Source: www.easyplanbirminghamsouth.co.uk

Drawings are arguably the most effective form of communication within a construction project and are used at all stages.  It is therefore fundamentally important that all of those who are responsible for taking measurements and preparing drawings understand the significance of what they are doing. The 'life' of a drawing will be developed throughout a project and will vary depending upon the complexity and type of project.  For example concept drawings may be required, which can then become initial design drawings, followed by detailed design drawings.  From this stage the drawings could then be developed into construction drawings and used for tendering and also contract drawings.  Eventually, the drawings will become 'as built' and will be included into a Health & Safety File, a requirement under the Construction (Design & Management) Regulations 2015. The above examples of where drawings could be used in a construction project is not exhaustive, however demonstrates their importance.

Errors or omissions in a drawing can result in serious consequences which can manifest themselves into confusion and disagreement, delays, additional costs and ultimately disputes.  These problems can be avoided by ensuring that those who undertake measured surveys are adequately trained and supervised.  It would be very unwise to assume that undertaking a measured survey is a simple process and a skill that everyone should naturally have.  This is because buildings differ significantly in size, construction and form and the amount of information needed will vary depending on the scope of the project. One thing however that is for certain is that undertaking a measured survey is far more than just obtaining dimensions! A common issues I often found with my surveyors when undertaking an internal measured survey would be that they would sometimes miss key information such as floor to ceiling heights, window cill height, joist direction, services intake of a building, diagonal check measurements and sometimes even forgetting to note wall construction. If a re-visit is necessary to collect missing information then this will be a cost to the business and can impact on profitability.

Source: www.puresurvey.co.uk

It is important that the right measuring equipment is taken and used. This will include a folding measure and 5 or 10 metre steel tape (or both) for measuring shorter distances and 25 metre tape and a trundle wheel for measuring longer distances.  Nowadays a digital measure will also be taken which can also be used to obtain, rooms sizes (sqm) as well as single dimension measurements.  When using measuring equipment the 'Surveyor' should be fully aware of the limitations of the equipment and also have an appreciation of distance to be able to discern whether digital dimension are accurate or not.  This is because inaccurate readings can be obtained from a digital measure when the laser comes into contact with reflective surfaces or glass.  If the Surveyor was to write down the measurement without asking themselves if the reading is reasonable, they will have problems when they return to the office and start to prepare their drawings.

Whilst undertaking a measured survey on site the Surveyor must appreciate that either they, or maybe somebody else like an Architectural Technologist will have to interpret the information that has been collected on site in order to prepare the drawings.  Many times I have witnessed Surveyors and Technologists look with complete dismay at a piece of paper in the office that has been given to them by someone who has undertaken a measured survey.  This is because what they are looking at is a rain drenched, smudged, excuse for a drawing that is so 'busy' with lines, dimensions and other information that it is difficult to tell the difference between each!, and they are expected to produce an accurate drawing from this!

To help minimise omissions and errors in drawings there are some simple basic techniques that can be very useful when undertaking measured surveys.  Firstly, I always advised my Surveyors to draw the building footprint (in pencil) first, before taking any dimensions, The pencil could then be overdrawn in pen later.  This would ensure that the drawing was well proportioned and avoid 'squashing' information into a small corner of a piece of paper, because there is no room left on the sheet, toward the end of the survey.  Next, use different colour pens for recording information.  It is much easier to interpret a drawing if say the building outline is in black, dimensions are in red, construction details are in green, sockets, switches and radiators are in blue etc.  Next, when using measuring tapes particularly for longer distances, ensure that there are no twists in the tape and that it is a tight as possible to avoid deflection.  Surveyors must also ensure that dimensions are taken at the same height.  For example is one Surveyor is holding the tape just above the skirting board and at the other end the Surveyor is holding the tape half way up the wall this could result in a significant inaccuracy in a single dimension.

The importance of a comprehensive and accurate measured survey cannot be understated, which can only be achieved through appropriate training and supervision.  Organisations should ignore this at their peril!

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What's the crack? The importance of correct diagnosis of cracking in buildings

Due to the many different factors that can contribute to cracking, this is one of the most easily mis-diagnosed defects that can occur in buildings.

Source: www.eapenvoy.co.uk

When cracking is identified in a building the usual reaction is one of alarm and sometimes panic. Over the years as a Building Surveyor I have learned to be very cautious in diagnosing the cause of cracking, because it is necessary to fully understand the underlying factors that are causing it to ensure that an accurate and appropriate solution is recommended.

Cracking in a building can occur for a variety of reasons and sometimes there maybe a combination of factors that contribute to the problem.  For example drains could be damaged allowing surface or foul water to permeate into the sub-soil below a foundation.  Over time the soil will start to erode and the rate of erosion will depend on the type of soil (e.g granular soil will be more vulnerable than other types of soil), climatic condition, location etc. It is clear that the drainage will need to be rectified to ensure that the surface or foul water, finds its way through the drainage system correctly. However, what has caused the problem to the drains? Are there tree roots in the drains? Are there other trees in close proximity? Has the ground under the drains been affected in some way (i.e nearby excavations)? Is there a damaged rainwater down pipe or guttering in close proximity to the drains that are allowing large volumes of water into the sub-soil, particularly for shallow drainage? etc.etc. 

Source: own

It is therefore fundamentally important that anyone who undertakes inspections or gives advice in respect of cracking in buildings should not make rash judgements and should gather all of the evidence before arriving at a possible cause. In order to aid the inspector, which can be a Building Surveyor or Structural Engineer, it might be necessary to recommend other investigations such as geo-technical surveys to establish ground type, composition, contaminants etc., trial holes to establish foundation depths, CCTV inspection of the drainage system and possibly an arboricultural survey to give advice on any trees that may be an influencing factor. It may also be necessary to undertake monitoring of the crack to establish whether movement is still occurring. For cracking of a less significant nature these types of investigations might not be necessary at all. The choice of which investigations are needed will be decided once the inspector has made an initial assessment of the cracking.

Not all cracking in buildings is serious, which is why it is so fundamentally important to diagnose the cause correctly.  In some situations remedial measures may be as simply as rake out and re-point mortar joints, or possibly a technique called 'stitch repairing', which is basically raking out horizontal bed joints every five or six courses either side of a crack and installing steel bars which are set in epoxy resin (see video below). After the resin has cured the bed joints are simply re-pointed. At the other end of the scale however remedial measures  could be much more substantial and include underpinning or possibly even partial or even full demolition and re-build.  Therefore it is clear that the costs of dealing with cracking in buildings is extremely wide ranging, and mis-diagnosis could result in either undertaking repairs that may not have been necessary (which can be very expensive), or not dealing with the problem appropriately, with the cracking re-occurring.

I sometimes have a rye smile when I watch property programmes such as Homes under the Hammer. It is interesting to hear the presenters talk about defects that 'they have discovered' when they visit the various properties, particularly cracking.  You can bet that they will say, 'that could be serious and needs checking out', they obviously do not have a clue what the cause of the problem actually is. What is even funnier is when they ask the purchaser if they were aware of the cracking when they had bid for the property and they will always say 'yes, but we had it checked out and it is nothing serious!'. In all of the many episodes of that programme that I have seen over the years I have never heard any purchaser be perfectly honest and admit that the cracking was serious and had cost them a fortune! I suppose it is because they do not want to admit too being a complete fool on national television!

The subject of cracking in buildings is extremely wide ranging and it is not the purpose of this article to try to consider every aspect, in fact there are numerous books and other publications that cover the topic extensively.  What is important however is that when cracking occurs that the reasons for it are fully investigated and understood so that appropriate remedial works can be carried out.  Due to the many different factors that can contribute to cracking in buildings, this is one of the most easily mis-diagnosed defects that can occur.  It would therefore seem sensible to seek the advice of a professional at the earliest opportunity. Although this advice may have a cost attached, it could prevent a much higher cost in the future.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

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An Introduction to the Tort of Nuisance – Part 1

….an interference or disturbance must be shown to be unreasonable in order to pursue an action in nuisance, which by default must means that there are some occasions when interferences or disturbances will be reasonable

Source: http://www.mylubbock.us/

I have recently written a number of articles which discuss the Tort of Negligence which tends to get a great deal of publicity with legal specialists offering their services on a no win no fee basis.  You will see television adverts, billboards, newspaper and magazine articles, unsolicited emails and sometimes cold calling from legal companies trying to convince us that we have a legitimate claim in negligence for one reason or another.  A further area of Tort law which is just as significant, but less well known is the Tort of Nuisance.

In the case of Walter v Selfe (1851) the definition of nuisance is defined as: ‘…..an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among the English people’.  It is always interesting to read a judge’s decision and particularly the language that is used in ‘older cases’.  The vast majority of nuisance cases relate to an ‘unreasonable’ interference with the use and enjoyment of land or property.  What is also interesting is the fact that an interference or disturbance in nuisance must be shown to be unreasonable in order to pursue an action, which by default must means that there are some occasions when interferences or disturbances will be reasonable.  As an example let us consider a person who is working night shifts and therefore has to sleep during the day.  Does noise from a neighbouring property (during the day), constitute an unreasonable interference or disturbance?  It is unreasonable to expect the neighbour to be completely silent and an action in nuisance by the night worker is highly likely to fail.  On the other hand if the noise complained of can be proved to be excessive and persistent then the outcome could be very different.   The definition of what is considered as unreasonable interference is further clarified in the case of Carley v Willow Park Golf Course Ltd. (2002), ‘Interference must be such as would not be tolerated by the ordinary occupier. No use of land is reasonable if it produces substantial discomfort to others, or materially damages their property’.

Source: http://metro.co.uk/

Examples of what may constitute nuisance are not limited to noise as per the example above, and can include things such as odour, lighting, waste, air quality, bonfires and so on……  Nuisance can be categorized as public nuisance, private nuisance and statutory nuisance and I will endeavour to explain the difference between each over the course or this and the next few articles.

Public Nuisance is defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. As it is the general public that are affected, actions in public nuisance will mean that a number of people are affected (sometimes a considerable amount of people), not just an individual. Public nuisance is considered as a criminal action, where proceedings are brought by the Government who will typically seek an injunction to remedy the nuisance, not damages.  Sometimes however damages will accrue as a result of a successful injunction resulting in a defendant suffering financial consequences to rectify the impact of the nuisance. For example, a manufacturer who has polluted a river or stream may be served with an injunction preventing them from further pollution (the nuisance) and be fined for the costs of any clean up or re-mediation works.  Also, in some situations a criminal sentence may also be handed down by the courts.

There are a number of previous cases which provide examples of public nuisance including Benjamin v Storr (1874). For the purposes of his business, Storr kept horses and vans standing outside Benjamin’s coffee house throughout the day which caused an obstruction to the highway (a public nuisance). Benjamin complained that he had suffered special damage due to the vans and horses obstructing light, resulting in increased expense incurred for keeping gas lights burning throughout the day.  He further alleged that the smell of the horses was offensive and deterred customers from using the coffee house.  The court found in favour of the plaintiff (Benjamin) and demonstrates that a defendant can be found guilty of public nuisance (the obstruction of the highway) and also be faced with an action in tort for the loss and disruption resulting from the nuisance. 

Other examples of cases of public nuisance to look at include Tarry v Ashton (1876), Attorney General v PYA Quarries Ltd (1957), Dollman v Hillman (1974) and Tate & Lyle Industries v Greater London Council 1983), however, to conclude this article I would like to finish with a case that always generates some discussion with my students, the outcome of which, at first glance does seem a little unfair;

Wandsworth London Borough Council v Railtrack plc (2001), The defendant (Railtrack) owned a bridge which attracted large numbers of pigeons.  Interestingly, although the owner was not at fault, they were held liable to contribute to the local authority's costs of the bridge to deal with the nuisance.  As stated above, at first glance it does seem unfair that the defendant could be held responsible for what is effectively ‘the forces of nature’.  The justification from the courts for their decision was that the number of pigeons were enough to constitute a public nuisance, and the defendants became liable where they had not remedied the nuisance after a reasonable time. The judge went onto state; ‘the fact that the pigeons were wild, and that the nuisance was one of inconvenience rather than the causing of actual damage were not relevant. The local authority's request was reasonable’.

The above introduces the tort of nuisance and provides some case examples to demonstrate the point.  As with all areas of law, further reading will help to deepen understanding where I have provided some other cases for further reading and research. In my next article I will consider private nuisance.

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Law of Land & Property - Part 2 - Fixture or Chattel?

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it. 

Source: http://www.ecoinstaller.net/

Anyone who has bought and sold property over recent years will be very familiar with the pack of information that they receive from their legal advisors which details or schedules out all of the fixtures and fittings that will form part of the property/land.  This is important because there were often conflicts between a purchaser and a seller in respect of what formed part of the property/land and what did not.  It is therefore interesting to see what the law says about what is a fixture (and therefore forms part of the property/land) and what is a chattel (which does not).

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it.  Fixtures will therefore include things like buildings together with anything that is permanently attached to it.  If something is secured in place by anything other than its own weight, it is highly likely to be considered as a fixture.  A chattel on the other hand and hardly surprisingly is the exact opposite, being something that is easily removed and therefore cannot be considered as permanent. Chattels are therefore generally considered as temporary and easy to move (although there a number of exceptions to this, which will be considered later).  Before proceeding it is worth clarifying that the law considers ‘tenant fixtures’ in a very different way to other types of fixtures.  For the purposes of this article I will not be discussing tenant fixtures, which is a topic I will save for a future article.

Property is usually bought and sold under a contract which therefore allows the buyer and seller to come to whatever agreement they want in respect of fixtures and chattels.  Where this agreement is lacking, whether by ignorance or wilfulness and a dispute ensues the parties will sometime go court in order to resolve the dispute. Under the doctrine of judicial precedent the courts in the UK are bound by decisions made in similar previous cases so it is worth looking at some previous cases to help us to understand how the courts decide what is a fixture and what is a chattel.

Source: http://www.theglasgowstory.com/

The case of Holland v Hodgson (1872) is commonly referred to where the question in respect of fixtures and chattels.  The case related to whether some factory machinery (looms) were a fixture and formed part of a factory or if they indeed were chattels.  As stated above the law relating to tenant fixtures has evolved since this case however the test used for determining whether something is a fixture of a chattel is still relevant.  In deciding whether something is a fixture or a chattel the Judge identified two tests.  Firstly, the degree on annexation (how and the extent to which something is fixed) and the purpose of the annexation (the reason for fixing the item). In explaining the test the Judge went on to say that ‘articles that are only attached to the land by their weight are not usually considered to be part of the land, unless they were actually intended to form part of the land’. In order to demonstrate this point the judge gave an example of a dry stone wall, stating that ‘a pile of stones, randomly stacked in the middle of a field, would not be part of the land but when they have been arranged, packed, and formed into a stone wall, then they clearly are intended to be part of the land’. In any case it is the responsibility of the person/party claiming that an object forms part of the land to prove it.

In the case of Berkley v Poulett (1976) a dispute arose relating to whether certain items sold at auction were deemed to be fixtures and therefore formed part of the property/land or whether they were chattels.  The items in question were some pictures fitted into panelling in a wall and in the garden, a heavy marble statue resting on plinth and a sundial.  The Court of Appeal considered the test used in Holland v Hodgson and concluded that the pictures, although fixed to the wall were chattels as ‘they were put on the walls to be enjoyed as pictures, rather than with the intention of making them part of the land’. The statue was also not attached to the land, but was placed on a plinth that was attached to the land. The Court concluded that the plinth formed part of the land, but the statue did not, because there was no evidence that the statue was designed as part of an ‘architectural scheme’. The sundial was also determined to be a chattel, because it had been detached from its pedestal many years earlier.

If we contrast the case of Berkley v Poulett with the case of D’Eyncourt v Gregory (1866) we can see how the courts arrived at a different decision for similar items. In this case a sundial was also held to be a chattel rather than a fixture, however, in the garden, statues, figures, vases, and stone garden seats that were part of the architectural design of the grounds were deemed to be fixtures, whether or not they were attached to the ground.

In most property transactions the question of whether something is a fixture or a chattel is relatively straightforward however in instances where this is bought into question it is worth being aware that there is precedent for determining this and resolving disputes.  As stated above, in a future article I will tackle the issue of ‘tenant fixtures’, where we will find that the law differs from that stated above.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.