I wonder can someone offer a bit of advice here on the following situation.
My mothers house is built on a 1/2 acre site in a provincial town. The site is unusual in so far as it is located within a two minute walk of the main shopping streets. It is situated on a hill with an old stone boundary wall surrounding most of the its perimeter and landscaped gardens.
Recently a new dwelling was granted planning permission on an adjoining site. The problem is that because the site is on a hill it actually means that the new dwelling is elevated and built on top of this old stone wall which varies in height from 3m to 6.5m at different points. At the planning stages my father (since deceased) entered an engineers report highlighting the condition of the wall and the fact that it could not be used as a retaining support for a new structure. Planning agreed and put a condition in that an engineer would have to indemnify the wall and furnish a report on depth of foundations etc.. before construction started.
This was back in 2000.
However the house has been started in recent weeks without any such report or insurance been lodged. We contacted the Town Council and two town planners (new) have visited the site several times and stopped construction at foundation stage. They felt that the site should have been piled from the inside to lend support. They could not believe that planning was granted on the site with the wall in its condition. Again however the owner of the new dwelling totally ignored the council and continued building. The house is now at roof level.
The planner told me Christmas week that his hands are tied and that the local council is" choosing" not to do anything about it.The engineer also intimated that he has had pressure on him from a particular Town Councillor.
The house is built so close to the top of the wall that there is no room for a footpath around it. The site is tiny. Anyone who has looked at it has told us that no engineer will indemnify it, as it is almost a certainty that the wall is going to give way.
Our problem is now that over the Christmas period the wall has deteriorated further and has actually started to fall in places. My mothers property is very valuable and if this wall does fall the owner of the new dwelling will not most likely be in a position to compensate for damage caused. The damage will probably run into thousands of euro.
I should point out that we have no objection to the house been built and really are just looking for a copy of an engineers indemnity insurance to be lodged so that at least we have some comeback. We just want our property to be left alone.(My fathers love was his garden -so this is almost a sacred place now since he died, in my mothers eyes.)
I would really appreciate if someone could guide us in the right direction here. We really do not want to be awkward neighbours but unfortunately have found ourselves in a situation that has to be addressed.
Where do we go next? Sorry if this post is long winded.
Yes, RainyDay - it looks like it a visit to a solicitor is probably going to be our next step but as we know the " neighbours" we are trying to explore all other avenues first. It is such a mess.
Hi Igora! It sounds as if everyone involved - apart from the neighbours who are building this new house - are appalled by the issues raised but no-one - including your family - can find the appropriate mechanism for averting what you all fear will be a disastrous development.
You feel "Going to a solicitor" and turning this into a litigious situation between yourselves and the party who is building the new house might lead to a difficult and un-neighbourly relationship in the future which will not benefit your mother's peace of mind and continued enjoyment of the garden.
However it does sound from your post as if the haste and carelessness of practical safety issues inherent in the structure of this new house constitute a serious safety risk to any potential occupant and to your mother and her property.
In addition to planning officers and planning law, there are also Building Regulations and it sounds from the description as if these are being flouted. Perhaps someone involved in the building or planning fields can confirm this but is it not the actual building regulations which must be observed in any building intended for human domicile? Would it be feasible for your family to contact the local B.R.Officer to get an expert opinion. If this confirms the reservations of the planning officers and your family's concerns you would then have the option of going ahead with confidence in arranging a meeting of planners, B.R.officer, the developer and yourselves where these concerns could be expressed and conveyed clearly and possibile alternatives explored. This would be a formal - but non-litigious - intervention which lifts the issue out of the personal whilst putting the ball squarely back in the developer's court.
Just in passing would you clarify if the wall is actually incorporated into the new house? You mention the lack of 'space for a path' between the new hourse and the boundary wall.
Many thanks for your informative reply. The house is actually built on top of the wall more or less, but does not actually use the wall as such. It is inside it by about 18inches or so. The wall supports the actual higher ground level of the site. Our engineers opinion is that sheer failure is likely to occur due to soil disturbance caused by the digging of the foundations and the additional weightof a new house. This dwelling house will be owner occupied.
Why - in your view - are the developers (owner-occupiers) hell-bent on building a house which is (a) going to be declared unsafe for human habitation; (b) is uninsurable since any official who undertook to sign it off as satisfactorily constructed risks liability themselves; are (c) throwing their money away in a combination of a flawed house plus the potential claims your mother will have on them in the case of their decisions causing damage to her home or garden? This sounds extraordinary!
In the deeds of your mother's house is the boundary-wall identified as part of her property? There would be a difference in interpretation if the wall is a "common party wall" or "a wall" marking the boundary of the house and garden, and the 18" you mention gives a clue that the neighbour is observing building regulations in terms of not intruding onto your mother's land with drains, guttering, soffitts eves etc. Was the wall put there by your parents and have they had sole responsibility for its maintenance? Could it be that the neighbour presumes any stabilisation of this wall would be your mother's responsibility if it is 'her' wall? There are usually local arrangements/precedents around who and how boundary or common party-walls are installed and maintained. Might it be that the developer/neighbour believes the state and stability of the wall in question is your mother's responsibility? Have they seen the engineer's report commissioned by your late father confirming the wall would be likely to collapse with the stress of new foundations/disturbance so close to it? The real question is who is responsible for maintaining the wall. As it's the 'garden wall' it sounds - from your description - as if that responsibility might be your mothers! One would imagine however that there would be protection in law of 'existing' features such as the 'old stone wall' you describe. It is hard to understand how the developer/neighbour has managed to get planning permission given the size and nature of the site. Sounds very worrying.........
The wall is a common party wall which is believed to be over 100 years old. It was cosmetically repaired by my father purely because it formed a lovely backdrop for the garden.
When the permission was granted the schedule had 13 conditions attached. The one concerning the wall reads as follows..
" Detailed proposals for the retention and repair of the existing boundary retaining walls shall be submitted to the Planning Authority prior to the commencement of the development. These proposals shall include an assessment of the current retaining walls and their suitability to withstand the additional loadings expected during construction and lifetime of the dev. Thses proposals must be prepared by a professional Engineer with prof. indemnity insurance. A copy of this insurance shall be included with these details."
Other conditions seeking their proposals to minimise visual impact, depth of foundations, entrance details etc... were also asked for prior to commencement but again were not furnished by the developer.
I suppose the real issues which I am trying to clarify here are...
(a) Can a Town Council choose to ignore/ fail to implement its own Planning conditions?
In other words can someone really build what they like?
(b) Is there any Property Owners Protection rights in this situation?
(c) Would An Bord Pleanala have an interest in this matter at this stage even though they never would have had reason to handle this application before?
(d) Who is most negligent here...Is it the developer of the site or our Planning Authority for failing to act after this matter has been brought to their attention?
It is a mystery to us how planning was ever granted on the site (even the current planners have admitted this)... but that is really no longer the issue. The site was inherited after we believe family issues of ownership were sorted. It has a fabulous location with great views.
It is incredible to believe that any person would build a house all the while knowing that an engineers report highlighting a wall in such grave condition existed in their Planning File.
Igora - As an 'outside lay observer' I'm playing Devil's Advocate here to explore different aspects of the situation which might lead to clarifying the issue. As RainyDay suggested you do need specialist legal assistance with this urgently but it also helps to try to see issues from another perspective. Your late father did some (cosmetic) work to the wall and arranged for submission of an engineer's report to the Planning Department in 2000 but notwithstanding the latter a new house is under construction without any remedial work to the wall.
In my view, if the developer/neighbour is simply ignoring planning requirements and building regulations then your mother's situation is that IF an old wall and portion of the new house come into her sitting-room her insurer will make good the damage and claim against the neighbour's insurance.
However if the developer/neighbour is going ahead with building a house on the basis that the old boundary wall along one edge of their small site is the responsibility of his neighbour (i.e. is not aware of the engineer's report, or the shared party-wall status, or because the engineer's report from 2000 has been misfiled whilst the planners dealing with the site are 'new') then it might be prudent to find out who knows what and who is/thinks they are responsible for what.
Have you considered a planning consultant instead of a solicitor? They might be able to assist ... knowing the planning laws inside out as they do. Another suggestion would be to talk to your local representative ... put pressure on him/her to find out how the county council is allowing this to happen.
There should be an enforcement deptartment within the council and their job as far as I know is to enforce all planning conditions. I had issue with a developer and enforcement were prepared to issue an order stopping work on site until planning conditions were complied with. The conditions in this case were very minor to do with working hours on site. You should contact the enforcement sept and ask them to stop work until conditions in order and if they won't they would need to explain why.
The Council formally stopped all work on the site by writing to the developer in Mid November 05. The developer totally ignored the Council and continued on regardless. The Council do not seem to be enforcing their own laws...that is our problem.
Igora - I suspect the developer is getting on with building a house in the belief that the condition and safety of the wall in question is the responsibility of the owner of the adjacent property - your mother!
Urban Planning is not a 'science'; it is a combination of social relations and politics. "Engineering" and application of technical building skills cannot occur if nobody knows who is responsible for the issue requiring technical attention.
Muddled thinking and lack of communication between individuals living in close proximity is far more dangerous and expensive than old dry-stone walls.