Lessons to be learnt from a recent case where a development was not built in accordance with approved plans

A recent completed residential development for 49 residential units in Sittingbourne, Kent, has come under the spotlight where the planning committee of Swale council scrutinised 49 houses built by the housing association, Moat Housing. Moat initially applied for permission which was approved and had already obtained retrospective planning permission in 2016 for differences in height of the units. However, it was revealed, after they applied for further 'minor material amendments', that they had constructed some of the units 1.8 metres higher than approved, resulting in overlooking issues for adjacent homes. The planning committee have dubbed the provision of inaccurate designs as "unacceptable" and have decided to engage in further discussions with Moat to seek revisions that address the overlooking concerns. Should these discussions fail, the application could be refused, resulting in costly consequences for Moat (both in appealing the decisions, and from enforcement action by the council). 

The most likely outcome in the above case is that the developer and local planning authority will try and agree more substantial revisions and a new minor material amendments application will be made to make the houses closer to what was originally approved. However, enforcement can be as extreme as to include demolition orders, which was seen in recent enforcement action taken by Bury Council of a newly built four-bedroom house in Prestwich, which the council claimed was built taller, and 145cm closer to the street, than originally planned.

Depending on your relationship to a property that’s come under scrutiny for deviating from its plans, you may have questions such as:

To minimize the risk of encountering similar issues, ensure that your development plans and the details of adjoining properties are accurate. Inaccurate plans can lead to enforcement action or require you to submit variation applications, which may necessitate additional mitigation measures. It could also result in your planning permission being subject to judicial review. These measures could devalue your buildings and potentially lead to claims from purchasers. It’s crucial to have robust contracts with your consultant architects that clearly apportion the risk to them for any inaccuracies or non-compliance with planning permissions and ideally have robust checking processes in order ahead of submission of the planning application. 

If you suspect that the plans are inaccurate, it's important to object as early as possible. Raising concerns early, including the threat of a judicial review if necessary, increases the likelihood that amendments will be made to the scheme. This could be judicial review of the actual planning permission or if outside of the time limit, trying to ensure the local planning authority takes enforcement action (and challenging any failure to take enforcement action). It is quite rare for a building to be subject to an enforcement notice requiring its complete removal once construction is finished, so early action is critical.

Before purchasing, ensure that the 'as-built' plans are checked against the approved plans and the actual situation on the ground. This verification helps to avoid potential issues where the Local Planning Authority (LPA) might require variations to the incorrectly built property or mitigation works, which could devalue the property and require upfront financial outlay. Although you might recover these costs from the developer on the grounds of misrepresentation, it's far better to resolve any discrepancies before completing the purchase.

Our real estate, planning and construction team provides strategic advice to assist individuals with the often complex aspects of planning law, helping clients achieve their property aims.