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Challenging Nightmare Neighbouring Property Extensions

Thursday, 6 November 2014

The inconsistency of the planning system in the UK causes considerable grief even for property professionals. It is therefore understandable that ordinary members of the public are confused as to what is and is not allowed when developments occur that disrupt their enjoyment of their own property.

Cases occur from time to time in the mainstream media that no doubt increase the sense of bewilderment at what course of action people should take in such circumstances. Generally property disputes arise from a complex mixture of practical problems combined with encroachments upon legal rights or restrictions. This means an experienced property solicitor is often a helpful resource to turn to when things go wrong. Planning in particular is often a minefield as a recent case in Birmingham demonstrates.

A Planning Dispute over Neighbouring Property

Gerard and Christina White, of The Hurst, Moseley, in Birmingham, claimed recently that their property was “unsellable” after a property developer extended a neighbouring house’s wall to mere inches away from the Whites’ house.

The Whites had lived on the leafy street for 37 years and felt enormous anger at the seeming injustice. Pictures of the two houses featured widely in newspapers, side by side, and demonstrated that the development could be seen as effectively turning the once detached neighbouring properties into semi-detached houses.

Property developer Mohammed Nazir bought 61 The Hurst for £225k in 2012. He subsequently started developing an extension between the houses, even though he had not at the time secured the relevant planning permission. The two-story extension contained a kitchen, family room, living room and toilet, as well as a fourth bedroom upstairs overlooking the Whites’ garden.

The Local Authority Approach to the Breach of Planning

The Whites made numerous complaints to Birmingham City Council, stressing that Mr Nazir had only obtained permission to build according to plans approved three months after building had begun.

A roofer, engaged by the Whites, had found the couple’s gutter resting on Mr Nazir’s roof, such was the closeness of proximity between the houses.

Birmingham City Council has since admitted that it found the work undertaken to have “differed slightly” from what was approved. However, it made clear that this was not sufficiently different to warrant enforcement action. The case was therefore closed.

Mr White maintained that Mr Nazir had simply “done what he liked” and that his complaints to the council were “not treated seriously”.

Challenging Neighbours’ Decisions to Extend their Property

Without examining the details of this case it is difficult to determine whether more could have been done to protect the White’s from this occurrence. However, for general challenges in this type of case there are important issues to bear in mind.

In English law there is no right to a view, a position stretching as far back as Aldred’s Case in 1610. As such, any obscuring of the Whites’ views of neighbouring land, properties, and roads by the extension could not provide grounds for a claim.

One of the reasons behind the principle is that to protect the right to a view would grossly hinder development. However, the principle has been undermined variously, and especially since Dennis v Davies [2009] where a covenant to “not cause a nuisance or annoyance” to neighbours was interpreted as including not developing properties to block the claimants’ views of the River Thames. As such, in hindsight the Whites might have considered covenanting with Mr Nazir’s predecessor in order to bind successors of the land and therefore prohibit development in the same manner as the Court of Appeal held in Dennis v Davies.

Legal recourse might also be had by the Whites, insofar as it exists in English law, through a right to light. Given that the couple have seemingly enjoyed for twenty years the uninterrupted use of the light reaching the back bedroom’s bay window, which used to overlook nearby curvature in a road, there may be a case given that about half the room should be lit by natural light. If so, even though the development is completed, the courts may, in rare circumstances, mandate that the development is altered in order to minimise the impact on the claimant’s property.

For specialist advice regarding property litigation claims contact Peter Gourri today by email or telephone 0207 611 4848.

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