Can I extend my house?
March 24, 2022 7:17 AM Subscribe
I'm in the UK. When we bought our house, we were told that we would essentially never be able to extend it. As far as I can see, we need covenant consent, but there are complications!
There is a big garden, and many other houses have been extended.
At some point in the past (>10 years ago) an out house was added to the property, without permission, and we got indemnity insurance to protect against this.
My understanding is that if we wanted to extend, we would need covenant consent, and then normal planning permission. I don't know how likely we are to get covenant consent; our lawyer basically implied that extension wasn't something we could do, but as far as I can tell it's just an additional level of permission.
My worry though is that the indemnity insurance only covers us in the event that we don't draw attention to the disallowed extension the insurance becomes void. So is it possible the very act of asking for permission for a new extension would draw attention to the fact that there already is one?
There is a big garden, and many other houses have been extended.
At some point in the past (>10 years ago) an out house was added to the property, without permission, and we got indemnity insurance to protect against this.
My understanding is that if we wanted to extend, we would need covenant consent, and then normal planning permission. I don't know how likely we are to get covenant consent; our lawyer basically implied that extension wasn't something we could do, but as far as I can tell it's just an additional level of permission.
My worry though is that the indemnity insurance only covers us in the event that we don't draw attention to the disallowed extension the insurance becomes void. So is it possible the very act of asking for permission for a new extension would draw attention to the fact that there already is one?
If your current extension has been there for >10 years already, it's close to the limit for any retrospective enforcement - I believe there's a 12-year time limit after the original breach. Maybe check that first.
If you're past the time that any retrospective enforcement could happen, you can position this whole thing as a regularisation of your existing extension w.r.t the covenant - you're aware that it was built without permission & you're now asking (without risk because the 12 years are already up) for the necessary consent to put it all straight (oh & by the way, we're also changing it like this & this if that's all ok with you, thanks!)
A sensible solicitor can help you. Not the one who originally told you it was all impossible, though.
posted by rd45 at 8:57 AM on March 24, 2022
If you're past the time that any retrospective enforcement could happen, you can position this whole thing as a regularisation of your existing extension w.r.t the covenant - you're aware that it was built without permission & you're now asking (without risk because the 12 years are already up) for the necessary consent to put it all straight (oh & by the way, we're also changing it like this & this if that's all ok with you, thanks!)
A sensible solicitor can help you. Not the one who originally told you it was all impossible, though.
posted by rd45 at 8:57 AM on March 24, 2022
There are time limits on the enforcement of some breaches of planning control, set out in the Town and Country Planning Act 1990. If you are lucky, it may be the case that your existing outbuilding cannot now be enforced against.
In terms of covenant consent and planning permission, is the covenant with the local authority (LA)? I think it's definitely the case that you can't assume the covenant consent and planning permission people will talk to each other, you need to get separate approvals for each. But on the other hand, it is not safe to assume that they don't talk to each other either!
The worst case is, I think that applying for either or both covenant consent or planning permission to the LA invalidates the indemnity insurance, AND the LA also denies one or both AND makes you demolish the outbuilding.
I suspect applying for the consent to the LA will invalidate the insurance as much as applying for planning permission would. What you need to know is whether the planning permission or covenant are likely to be declined by the LA, and whether they are able/likely to enforce demolition of the outbuilding. A professional (solicitor perhaps or maybe an architect) who regularly supports planning applications with your specific LA all the time would probably be able to make an educated guess. In a normal case, you can contact the planning dept directly, but that's not advised given your outbuilding situation.
posted by plonkee at 9:04 AM on March 24, 2022
In terms of covenant consent and planning permission, is the covenant with the local authority (LA)? I think it's definitely the case that you can't assume the covenant consent and planning permission people will talk to each other, you need to get separate approvals for each. But on the other hand, it is not safe to assume that they don't talk to each other either!
The worst case is, I think that applying for either or both covenant consent or planning permission to the LA invalidates the indemnity insurance, AND the LA also denies one or both AND makes you demolish the outbuilding.
I suspect applying for the consent to the LA will invalidate the insurance as much as applying for planning permission would. What you need to know is whether the planning permission or covenant are likely to be declined by the LA, and whether they are able/likely to enforce demolition of the outbuilding. A professional (solicitor perhaps or maybe an architect) who regularly supports planning applications with your specific LA all the time would probably be able to make an educated guess. In a normal case, you can contact the planning dept directly, but that's not advised given your outbuilding situation.
posted by plonkee at 9:04 AM on March 24, 2022
There is also the risk that the existence of the outbuilding influences their decision on your planning application itself (independently of whether it would have been given approval or not). For example if they think that too much of the plot has buildings on as a result. If it is going to be possible at all, an architect that works with this particular LA should be able to design an extension that is likely to get approval on the first or second attempt.
posted by plonkee at 9:07 AM on March 24, 2022
posted by plonkee at 9:07 AM on March 24, 2022
If the outbuilding has been in place as a structure for more than four years, you're generally immune from enforcement action unless it's an extension / building / structure within the curtilage of a listed building. The ten years' rule is for changes of use, where you have to demonstrate that the new use has been going on for ten years or more.
I've not heard about covenant consent except in the context of a covenant on the land that needs to be observed - so for example, new houses needing to allow historic access routes over the land, or open plan estates or whatever. There are often planning conditions, again normally associated with new builds and extensions, that need to be met or dealt with either before or during (rarely after) development takes place. Either way, that would be more a civil matter, so a solicitor would be your best bet for advice there.
Most local councils will offer advice (usually free) to householders who want to extend their properties and are unlikely to be too worried about a small outhouse - you are allowed to erect small ancillary buildings for domestic use without requiring planning permission and nowadays even large extensions to the property. I would look on your local council website for what will normally be called "pre-application advice".
You can also look at the Planning Portal, which is the best place to find out about what needs permission if you don't want to speak to your council.
You might also want to speak to those neighbours who've had extensions and see what they did about permission. Using the local council's planning pages will also usually let you search for previous applications in your area, and you can generally search by address if you wanted to check a particular property's planning history.
IAATownPlanner, IANYTP, TINTPAdvice. Get in touch with a local planning consultant or again speak to the planning officers at your council for more local help.
posted by Martha My Dear Prudence at 1:05 PM on March 24, 2022
I've not heard about covenant consent except in the context of a covenant on the land that needs to be observed - so for example, new houses needing to allow historic access routes over the land, or open plan estates or whatever. There are often planning conditions, again normally associated with new builds and extensions, that need to be met or dealt with either before or during (rarely after) development takes place. Either way, that would be more a civil matter, so a solicitor would be your best bet for advice there.
Most local councils will offer advice (usually free) to householders who want to extend their properties and are unlikely to be too worried about a small outhouse - you are allowed to erect small ancillary buildings for domestic use without requiring planning permission and nowadays even large extensions to the property. I would look on your local council website for what will normally be called "pre-application advice".
You can also look at the Planning Portal, which is the best place to find out about what needs permission if you don't want to speak to your council.
You might also want to speak to those neighbours who've had extensions and see what they did about permission. Using the local council's planning pages will also usually let you search for previous applications in your area, and you can generally search by address if you wanted to check a particular property's planning history.
IAATownPlanner, IANYTP, TINTPAdvice. Get in touch with a local planning consultant or again speak to the planning officers at your council for more local help.
posted by Martha My Dear Prudence at 1:05 PM on March 24, 2022
I'm not in your country, but lots of new developments here have covenants that limit all sorts of things. In those cases, the covenant is between the original purchaser and the developer (with a clause that the property can't be sold without the further purchaser agreeing to the covenant) and are not anything to do with any actual authority. They're basically a contract between the developer and the purchaser preventing the purchaser from doing anything that would (in the developer's eyes) reduce surrounding property values, specifically the other properties they are trying to sell at the time.
In the overwhelming majority of cases, while the covenant still technically exists, the developer has moved on after selling all the properties. At that stage, they don't give a rat's arse about the covenant because they no longer have any interest in maintaining the development's appearance (ie they are never going to enforce it). So, it's common for people to also not give a rat's arse about the covenant once the developer has moved on and to just do whatever they want, with appropriate local government approval as required (which is likely not needed for a small outhouse, BTW). The local government is unlikely to care about the covenant either, or even know it exists.
As others have suggested, contact the local government planning office and talk to them about what needs permission, what you can build without it and whether they have any interest in the covenant. If you're nervous about talking to them (which is free), engage a planning consultant (who you will have to pay).
Your lawyer may be saying you can't do this because, in a strictly technical sense, the covenant prevents it. Check who the parties are to the covenant to see how likely any of the parties are to care.
posted by dg at 4:15 PM on March 24, 2022
In the overwhelming majority of cases, while the covenant still technically exists, the developer has moved on after selling all the properties. At that stage, they don't give a rat's arse about the covenant because they no longer have any interest in maintaining the development's appearance (ie they are never going to enforce it). So, it's common for people to also not give a rat's arse about the covenant once the developer has moved on and to just do whatever they want, with appropriate local government approval as required (which is likely not needed for a small outhouse, BTW). The local government is unlikely to care about the covenant either, or even know it exists.
As others have suggested, contact the local government planning office and talk to them about what needs permission, what you can build without it and whether they have any interest in the covenant. If you're nervous about talking to them (which is free), engage a planning consultant (who you will have to pay).
Your lawyer may be saying you can't do this because, in a strictly technical sense, the covenant prevents it. Check who the parties are to the covenant to see how likely any of the parties are to care.
posted by dg at 4:15 PM on March 24, 2022
This thread is closed to new comments.
But it perhaps depends on who placed the covenant. Do the same people have covenants on the other properties that did manage to extend? Perhaps talk to some of the owners and also get a second legal opinion. If they are reasonably new builds then it was probably the developers.
Helpful summary, not an endorsement of that legal firm.
posted by dowcrag at 8:28 AM on March 24, 2022