# conflicting advice on an "exempt" extension to the rear of a house.



## Da Vinci (13 Oct 2010)

Hi there,

I have received conflicting advice on an "exempt" extension to the rear of a house that we are considering buying.

Our solicitor has told us that we need compliance certificates for the extension and that it may need retention planning permission as it is built on the boundary line?

The estate agent says that the extension was exempt from planning and that the certs can be supplied. Boundary not an issue?

We are afraid basically, as don't want a legal minefield..

It is a 36 sq m extension, to the rear, built 3 years ago and with the consent of the neighbour (in writing) was built on the boundary line.

Was this exempt from a planning application?


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## dereko1969 (13 Oct 2010)

why would you take the estate agents word over your own solicitor? 

the estate agent is acting for the vendor and won't get paid if the house doesn't sell, your solicitor is acting on your behalf and will get paid regardless.


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## Da Vinci (13 Oct 2010)

Hi dereko1969,

Thanks for the reply.

Well it's not that we are taking the estate agents word, we just asked him the planning status. 

Our solicitor was unsure and was flagging it as a potential problem so I guess I am really looking for advice on the next step. There has been a lot of discussion and brilliant advice on this thread so I was hoping that somebody reading it may actually be able to comment on if it needed planning or not. Sizewise etc it does but it is the boundary issue I am worried about? I rang a couple of architects but they said they would have to see it.

Thanks again


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## mf1 (13 Oct 2010)

"I rang a couple of architects but they said they would have to see it."

And there's your answer! This is a planning issue and you will be getting someone to survey the house if you do want to buy it. As a solicitor, I would always ask the purchaser to wait until I saw the planning documentation and could furnish it before they instructed their architect or engineer to survey their property. In this case, you should ask for the planning documents now so that you can take legal advice first and, very likely, an architect's or engineer's advice thereafter. 

These things can be quite subjective - one person may be willing to certify , another not and I tend to go with the most conservative view. Unless there is compelling reason not to. 

mf


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## Da Vinci (13 Oct 2010)

Hi mf1,

Thanks for your feedback.

"I would always ask the purchaser to wait until I saw the planning documentation"

There is no planning documentation when you dont need to apply for planning permission for an exempt development.

Which is precisely why I am asking for clarification on what constitutes a 40 sq m exempt development?

Are there any architects reading this willing to offer an opinion on whether a 36 sq metre single storey living room extension, to the rear, which cannot be seen from the front but is built on the boundary line needed planning permission? It is a semi- detached house and the extension is built on the neighbours side ie. the boundary of the two gardens.

Thanks a million.


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## mf1 (13 Oct 2010)

"The estate agent says that the extension was exempt from planning and that the certs can be supplied. "

There's your planning documentation. Ask for it. 

mf


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## picorette (13 Oct 2010)

Hi Da Vinci, speaking as a registered Architect, it sounds as if it is exempt but building on a boundary line can complicate matters and without seeing it, I could not be sure.

However, the onus is on the vendor to provide documentation for any extension or development of the house. 

If it required Planning Permission, a copy of the grant of Planning Permission should be supplied together with an Architect's Opinion of Compliance with the Planning Permission and Building Regulations. 

If it did not require Planning Permission, an Architect's Opinion regarding Exemption from Planning Permission and Compliance with Building Regulations should be supplied.

It is in your interest to ask for this as you will have no comeback after the purchase is complete without them. And if the vendor will not supply, you would have to ask what they have to hide...


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## Da Vinci (13 Oct 2010)

Picorette,

Thank you so much for that information. Very concise. I know what to ask for now and yes when we get it surveyed I will make sure that the boundary issue is clarified.

Mf1, thanks for the advice also, I will ask for the documents outlined by picorette.

Cheers!


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## TheRed (13 Oct 2010)

A section 5 (Planning and Development Act 2000) declaration is a statement by the relevant Council that a specific development is exempt from the requirement to obtain planning permission. If you want to be absolutely certain, I would get the vendor to obtain this rather than an architect's opinion. It involves a bit of work, getting drawings done up etc.

Schedule 2, Part 1 of the Planning and Development Regulations 2001 (available on irishstatutuebook.ie; http://www.irishstatutebook.ie/2001/en/si/0600.html#sched2) set out the types of development that are normally exempt for dwelling houses (there are lots of caveats though).


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## RKQ (13 Oct 2010)

I agree with mf1 above, review the Certificates of Exemption and take your Solicitors advice.

The floor area would suggest that the extension is exempt however as the wall is built on the boundary it may not be exempt as the wall & roof soffit / fascia / gutter _overhangs_ the neighbours property.


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## onq (13 Oct 2010)

Hi Da Vinci,

I see a lot of good advice about solicitors and estate agents here.
Estate Agents are not reliable sources of planning information in my experience.
They won't stand over anything they publish and usually you'll find a disclaimer stating this on their website or sales brochure.

Council planners are not au-fait with planning law to the extent they should be on extensions in my experience.
However I think The Red's advice to seek a Section 5 Declaration is sound and will put something more substantial on file than an architects opinion on what can be a grey area.

The reason this is a gray area is that building on a boundary usually means straddling the boundary and straying into the adjoining site - albeit minimally and with permission in this case.
The exempted development schedule is generally taken to apply *within* the legal boundary of a house, although it refers to curtilege and curtilege is not properly defined in law - apparently.
 Strictly speaking then, _*g*_*oing over* the rear shared boundary even by only 100-150mm - as RKQ describes - means this cannot be considered exempted development and permission should have been sought.

This is not set in stone and is only my opinion based on my own knowledge of the planning acts and several discussions online, but not an actual test case.
I'd therefore be very interested in hearing about how this turns out.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                         as a defence or support - in and of itself -    should       legal        action    be      taken.
Competent legal and building professionals should be asked to advise in                         Real Life with rights to inspect and issue  reports    on     the         matters    at      hand.


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## picorette (15 Oct 2010)

A Section 5 declaration would be an alternative regarding planning compliance. 
In addition, an opinion on Building Regulations compliance would still be required.


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## onq (15 Oct 2010)

The only person who can offer credible assurances about the built work is the person who built it.
Opinions of Compliance with Building Regulations exclude building condition and work covered up or inaccessible.
For a rear extensions it would also requires assessment of the main house opes in terms of veltilation between rooms, etc.

It is unlikely that an architect was involved, but I stand ready to be amazed. 
If one was involved, then the architect should offer Opinions of Compliance.
Of course in this case the assurances is sought only re planning exemption.

ONQ.


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