Advice on admitting to previous LBC breaches.

[WiltshireBoy]

First post, so Hi to everyone and if not exactly a free bar, I’ve put twenty on the tab for welcoming drinks so first come first serve.

Anyway onto the thread title subject. I’m going through a crisis of conscience at the moment due to previous breaches of listed building consent which have come to the fore when putting the house up for sale. These breaches were performed nigh on 20/30 years ago through a combination of naivety, ignorance and with hindsight, stupidity.

However, we now have a mind, and the finances, to right these breaches and have been pondering whether to take the house off the market and contact the local conservation officer regarding them. Yes, we realise an indemnity policy can be bought prior to sale to protect against such breaches but that is when my scruples start to tingle a little too uncomfortably. It also has to be said it would be fulfilling to do justice to the property itself, a property we have lived in for many happy years.

We are fully aware of the lengthy & bureaucratic nightmare we may well be letting ourselves in for but the question is, will I also be opening myself up to retrospective prosecution?

 

[phillc]

I understand the strong desire to do the right thing. And I guess I don't know whether what you did was a "technical contravention" (didn't apply for consent for something that would have been readily approved) or a "downright bad thing" (did something that no CO in their right mind would say yes to - I dunno, UPVC windows and cement render onto a grade 1 listed timber frame).

However, I think if you're trying to sell it then I'd position these things as the buyer's problem. I know LBC and building control are different things, but the buyer taking out insurance against missing BC consent is pretty common. If this risk is insurable too, then so be it. The buyer can take out the policy if they are worried. Job done.

If the changes have been there for 20-30 years, there's no obvious reason to believe enforcement is knocking on your door. The only new player in the game is the buyer, and their insurance policy will be immediately void if they report it. So, they likewise wont be motivated to.

None of this is to condone breaching but you've lived with that burden for 20-30 years and are now trying to sell. I wouldn't lose sleep over it now.

 

[skierhughes]

Can you actually insure against a known fact?
If everyone knows LBC has been breached, can you take a policy in case it gets brought up?

I think to make a comment on what you should do next, you really need to tell us what breaches have taken place.

 

[montyjohn]

I don't think indemnity insurance is a solution to this.
Most likely way the CO finds out is if the buyers apply for further changes.
At which point any policy will be void anyway.

Are you sure these items need LBC?

 

[phillc]

"Is it possible to insure against a known fact?" Yes, and it is common in house sales. You are not insuring against the breach, you are insuring against enforcement. Typically, for example, building control certificates for structural work won't be available. You buy a cheap indemnity cover for this. They come with one caveat: No-one has told building control there has been a breach and no-one has asked building control if consent exists for the change. So, the insurance is against the risk that BC suddenly finds out and takes action from outta nowhere.

Whether LBC is insurable on the same basis I dunno. The principle stands (with the main difference being there is no sunset timeline on enforcement) but whether any insurer is ready to take the risk at a reasonable policy price, I have to take the OP's word for that.

As to the matter coming up when the buyer applies for consent for future changes: I guess much depends on what you have done and the grading of your building but in practice it has never happened to me (grade 2). My seller did all manner of unauthorised and bad changes. We live in a cob house and they did things like inject a damp proof course, add tanking plaster, create e cement belt over the plinth and bitumous paint it. These are all bad things so on buying I immediately applied for LBC to remove all these things and put it right. The CO said "good idea, positive changes - please do". They did not say - "interesting, when did all those things happen?"

That said we have a very nice CO who is very supportive of the place being lived in, loved and maintained - and who is also drastically overworked dealing with genuine a**holes who really don't care, so she really doesn't have the time to worry about why previous mistakes happened, she's just interested in making sure future work is break even or improvement.

You might also choose to read the heritage entry for your house. If you've swapped out the internal doors but the listing doesn't mention the internal doors, then it's not immediately obvious that the CO would know to query the history. They only know what they know.

I am deliberately occupying the moral lower ground here. Ultimately, what's happened has happened ...

 

[phillc]

Oh, and I should point out that once you've sold, you've sold. Liability for previous unauthorised change passes to the new owners. You won't be sunning yourself in your new palace in ten years time and get the knock. Once they've bought, it is 100% the buyer's risk, not your risk.

To put it another way, it's up to them (after they've bought) whether they wish to invalidate their insurance by applying for future consents and declaring the unauthorised works. Not your problem.

Again, moral lower ground but what's happened has happened.

 

[WiltshireBoy]

Thanks for the responses guys, didn't expect them that quick. Perhaps best to first let me spell out the breaches i.e. no planning applied for what were neither trivial or heinous crimes.

• 7 sq m spar outhouse/garage built within the footprint of a derelict greenhouse that was in the property's curtilage which only had 2 side walls the largest being 1m long by 0.5m high. Not to mention a gert big pile of broken glass, window frames & rubble. I do have a photo of it before the garage was erected.
• removed condemned gas fire/back boiler and replaced with a combi that vented through a gable end.
• wood burner installed with Isokern chimney liner & leca backfill.
• replaced 5 windows & a door with the same materials (wood) but different design. In the case of the 2 dormers the originals were a weird combo of horizontal sash on one side of the window and a casement on the other Like for like casements for the other 3 but all windows had a central rail with the replacements being single pane.
• kitchen extractor fan venting through the (same) gable end.
• Repaired pointing on the front elevation.

The first & fourth items are probably the biggies with the latter being one of the items we would be prepared to correct in addition to a complete lime remortaring of the entire house even though we are only responsible for having changed the front elevation pointing.

 

[WiltshireBoy]

So, the insurance is against the risk that BC suddenly finds out and takes action.

Whether LBC is insurable on the same basis I dunno. The principle stands (with the main difference being there is no sunset timeline on enforcement) but whether any insurer is ready to take the risk at a reasonable policy price, I have to take the OP's word for that.

The early conversations I've had with the conveyancer is that yes, as LBC & therefore like for like replacement originates from planning then it is insurable. However I'm still unsure if it is only for the legal costs on any future action or if it includes any costs incurred rectifying the breach.

These same conversations did imply it's best for the seller to buy the indemnity policy and it does seem to me these are primarily used to facilitate the sale rather than for any kindly thought out benefit to the buyer or seller....

Oh, and I should point out that once you've sold, you've sold. Liability for previous unauthorised change passes to the new owners. You won't be sunning yourself in your new palace in ten years time and get the knock. Once they've bought, it is 100% the buyer's risk, not your risk.

To put it another way, it's up to them (after they've bought) whether they wish to invalidate their insurance by applying for future consents and declaring the unauthorised works. Not your problem.

Again, moral lower ground but what's happened has happened.

Yep... I have already noted that and, as you mentioned in the last line, have also noted, and am presently wading through, that particular moral swamp.

 

[WiltshireBoy]

You might also choose to read the heritage entry for your house. If you've swapped out the internal doors but the listing doesn't mention the internal doors, then it's not immediately obvious that the CO would know to query the history. They only know what they know.

I have already done that and it does mention the horizontal sliding sashes on the dormers and strangely enough a 2/6 horned sash which has always been a 2/8 horned sash since we bought the place. However it doesn't mention if the latter can actually be opened which we've never been able to do since we bought the property

That said we have a very nice CO who is very supportive of the place being lived in, loved and maintained - and who is also drastically overworked dealing with genuine a**holes who really don't care, so she really doesn't have the time to worry about why previous mistakes happened, she's just interested in making sure future work is break even or improvement.

And that is pretty much the nub of it...

 

[Kearn]

Simply put, I’d let it play out.

Most conveyancing solicitors won’t be good enough to even identify these things. Unless you spill the beans… it’s also a very long time ago!

Indemnity insurance is worthless once the items are known things. Buyers and sellers use it to make themselves feel better without realising it’s money down the drain.

The issues become those of the new owners once sold, nobody will be prosecuted practically though.

Equally, if there are things that the new owners don’t mind, then they may happily let them slide - for example, we opened up a conservatory removing doors from the house to add on, technically this needed BRs, which weren’t in place, new owners more than happy with the set up and risk.

If you get into retrospective LBC, you may as well pause for a year and say goodbye to £1000s for the pain.

Keep as quiet as possible and see what happens would be my advice.

 

[paulc]

Oh, and I should point out that once you've sold, you've sold. Liability for previous unauthorised change passes to the new owners. You won't be sunning yourself in your new palace in ten years time and get the knock. Once they've bought, it is 100% the buyer's risk, not your risk.

But if the buyer asks about any changes and you don't answer (or lie), they may well have grounds to sue...
Not sure if a stove, boiler, and extractor fan would incur the wrath of a CO, but certainly the BCO would be aware of the boiler and possibly the stove.

 

[phillc]

I'm with Kearn (I think) on that.

Here's what happened when we bought our listed house.

Solicitor to seller: "Please provide documentation for any listed building, planning or building control consents you have".
Seller duly provides.
Solicitor to seller: "Please provide any guarantees or similar for any work you have had done".
Seller duly provides.

Solicitor emails the lot to me, with a simple "here you go, you might want to review that." Solicitor doesn't even read.

In the list of guarantees the seller has provided is a whole stack of Timberwise cr4p for stripping off internal plaster, tanking up to 1 metre, 10 year guarantee, yadda yadda.

None of that 'destruction of historic plaster and replacement with modern tanking materials' anywhere referenced in any LBC.

Solicitor neither read nor cared, so didn't spot. I spotted it. But, I also am wise enough to have spotted it when I looked round the house, so was the kind of buyer who factored it in and was happy with it. On completion, in goes LBC "this house appears to have a range of modern cementitious plasters that are deleterious to cob - origins unknown. We propose stripping back, making such cob repairs are necessary and replacing with a sympathetic earth plaster". CO: "Excellent, please do that!"

You shouldn't lie. In practice you're unlikely to get sued by the buyer unless you're selling a £MMM London mansion with a moth infestation your forgot to mention, but yes, it would be a risk. "No we never replaced the windows" is a lie. "We have provided the paperwork we have, sorry, we are unable to advise the buyer further" is not a lie. The buyer's soliciitor is very very unlikely to ask specific questions like "did you drill a hole for the boiler flu?" so you are unlikely to be in a position where you need to lie.

Indemnity policies do have some merit so long as the enforcing party (in this case, the CO) is not aware of the breach when the policy is taken out but they're cheap largely because they are largely a placebo. However, placebos are good if they get the sale over the line.

As Kearn wrote, let it play out. Eyes on the prize of selling it.

 

[Flyfisher]

Oh, and I should point out that once you've sold, you've sold. Liability for previous unauthorised change passes to the new owners.

Just to clarify this point. I'm no expert, but my understanding is that liability for rectification of unauthorised changes lies with the current owner, whereas the criminal offence of making the unauthorised changes remains with the persons who carried out the deed.

But, 20-30 years ago? I'd let sleeping dogs lie. Besides it doesn't sound like the property has been totally ruined or has had things done that wouldn't get LBC anyway. Perhaps the garage is the most serious issue, but worst case it sounds like it cound be removed with no damage to the original fabric of the house if required, so no actual harm done.

Add there's always the defence of LBC being required for any alteration that affects the character of the building (according to Historic England's website). Of course, this opens a hugely subjective can or worms, but does a boiler flue through a gable wall really affect the character of the property. Listed properties have to be suitable for modern living otherwise who will live in them and maintain them at significant expense from their own pocket?

 

[WiltshireBoy]

Indemnity insurance is worthless once the items are known things. Buyers and sellers use it to make themselves feel better without realising it’s money down the drain.

Yep - that’s the conclusion I’ve slowly come to and it does seem primarily used to facilitate the sale & hence fees for the conveyancer & estate agent... with less regard for the seller, buyer or even the property itself.

I think I'm correct in saying the indemnity only covers the instance where the lack of planning & hence LBC is discovered independently by the authorities. And I’m still not certain it would reimburse any rectification costs.

If the new owner recognises the failings, applies to correct them and has expectations of the cost, then it’s of no concern the indemnity is invalidated. However if the new owner doesn’t recognise the failings and applies to just replace then they’ll be in for a shock when they’re obligated to correct them and the indemnity has disappeared.

However the latter is exactly when you would want to be insured so it's deffo a classic case of caveat emptor.

If you get into retrospective LBC, you may as well pause for a year and say goodbye to £1000s for the pain.

Keep as quiet as possible and see what happens would be my advice.

As you say lets see what happens so if the buyers are savvy and raise concerns they may walk or offer a lower price. Then it’s up to me whether to accept or not taking into account, as I said at the top, that I’m well aware of the time scales, hassle and costs involved.

And if it's non savvy buyer well.... I suppose I'll just have to accept my tingling scruples. Which is sortov where I came in

 

[Kearn]

.

• 7 sq m spar outhouse/garage built within the footprint of a derelict greenhouse that was in the property's curtilage which only had 2 side walls the largest being 1m long by 0.5m high. Not to mention a gert big pile of broken glass, window frames & rubble. I do have a photo of it before the garage was erected.

This is the one that will probably be flagged and is most obvious. What was there before isn’t relevant.
As permitted development rights are waived, you’d be looking at PP for this and most likely LBC also, but LAs do vary… simple solution if anyone got tetchy, cost to level and remove from site off the asking. Then they can take their chances.

• removed condemned gas fire/back boiler and replaced with a combi that vented through a gable end.

Grey area as to whether LBC even needed, only real reason is creating new openings in the historic fabric. Wouldn’t worry.

• wood burner installed with Isokern chimney liner & leca backfill.

Hopefully professionally installed and therefore has the necessary certs, which is all that will be requested.
Beyond that, filling a chimney is a shame as it’s not a good idea or necessary, and is totally irreversible.

• replaced 5 windows & a door with the same materials (wood) but different design. In the case of the 2 dormers the originals were a weird combo of horizontal sash on one side of the window and a casement on the other Like for like casements for the other 3 but all windows had a central rail with the replacements being single pane.

At least they’re not UPVC!
Windows are always contentious, if you took valuable historical items out, that’s again a shame especially as the timber quality far surpasses anything available today. And the nice old glass… having a mismatch of styles I feel to be part of the story of a building evolving… doubt anyone will notice this anyway.

• kitchen extractor fan venting through the (same) gable end.

Nobody will know. Hopefully done as discretely as possible, but this is always an issue. We need ventilation in old buildings, but achieving the forced variety necessitates external venting… bathrooms you can sometimes get away with under tile discrete options, but requires excess venting and coat and reduced efficiency often. Kitchen extractors, there isn’t much choice except out the wall.
I still need to find an appropriate external grill for ours that won’t look crap on the old brick wall!

• Repaired pointing on the front elevation.

.

Maintenance, assuming matched to what was originally there and done in the correct lime mix.

I wouldn’t lose sleep over any of that just to be fair, but maybe consider a counter option or two regarding the garage.

 

[phillc]

Beyond that, filling a chimney is a shame as it’s not a good idea or necessary, and is totally irreversible.

I am probably being dumb but why is it irreversible? Don't you just kinda take the register plate off the bototm and all the infill falls out, followed by popping up to the top, detach the liner from the flaunching, out it falls too?

 

[Kearn]

I am probably being dumb but why is it irreversible? Don't you just kinda take the register plate off the bototm and all the infill falls out, followed by popping up to the top, detach the liner from the flaunching, out it falls too?

Depends on the infill, many are poured in and set solid…

 

[WiltshireBoy]

This is the one that will probably be flagged and is most obvious. What was there before isn’t relevant.
As permitted development rights are waived, you’d be looking at PP for this and most likely LBC also, but LAs do vary… simple solution if anyone got tetchy, cost to level and remove from site off the asking. Then they can take their chances.

Surprises me this would be viewed more seriously than replacement windows that more obviously change the 'character' of the property. And I doubt the previous window's timber quality was any better than modern day cardboard - they were literally failing apart along with a couple of cracked panes. However as mentioned above the two dormers are described in the listing i.e. horizontal sliding sashes.

Hopefully professionally installed and therefore has the necessary certs, which is all that will be requested.

The (Clearview) wood burner was professional installed in 1998 way before HETAS certification was required in 2005 (?). We have the past 6 years or so chimney sweep certificates which are deemed to be sufficient.

Beyond that, filling a chimney is a shame as it’s not a good idea or necessary, and is totally irreversible.

I am probably being dumb but why is it irreversible? Don't you just kinda take the register plate off the bototm and all the infill falls out, followed by popping up to the top, detach the liner from the flaunching, out it falls too?

Depends on the infill, many are poured in and set solid…

From memory, ho hum..., the leca infill was that loose stuff that looks like cat litter/vermiculite. Beside the whole reason for using it and the Isokern liner was because it provides much better protection of any wooden beams projecting into the chimney space, over a much longer period of time, than a basic flexible metal liner could ever hope for. I'd be wary of the same risk if any chimney is used without such protection.

As a matter of interest the liner cost more than the burner - just over 2 grand for the whole job. In 1998 remember. For which I do have receipts.

Btw the liner consists of individual 'pipes' that are placed one on top of the other and are entirely supported by the register plate rather than hung from the top