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Friday 20th December 2019

Thinking of building in your back garden?

If you have a garden big enough for another property, you may be thinking about how a new building could allow you to downsize or to sell on and bank the profit.

‘There are several things you need to consider first,’ says Louise Webber, a residential conveyancing expert with Rundlewalker Solicitors in Exeter who outlines some of the issues involved.

Physical constraints of your garden plot
Your garden must be able to accommodate a new home comfortably and have good physical access. There should also be no legal obstacles to access, so involve your solicitor early on. For example, if you do not own your current driveway but only have rights over it, do not assume your new build will automatically have the same rights.

Access to services, such as electricity and water, is also important. Ideally, you should be able to connect into the existing mains supply. Although there is usually a way of bringing services in, even to remote properties, this will add to the cost. If you need to run cables or pipes across neighbouring land, you will need to ensure the necessary legal agreements are in place.

Getting planning permission for your new build
Your new build will require planning permission. In deciding whether to grant permission, your local authority will consider national planning guidance, its own policies and your plans for the building. Some plots, particularly those in established residential areas, may be more suitable than others for development, but your local planning authority will consider any application on its individual merits.

Other consents you may need
There may be legal restrictions in your title which prevent building, or which require a third party’s consent to any works. Your solicitor can advise you if any apply to your land and whether they are still enforceable. If they are, it may be possible to negotiate a release or to take out an insurance policy which can protect you and allow your project to go ahead. If you have a mortgage you will also need your lender’s consent, so this could be a good time to review your financial arrangements.

Is your property within an area affected by a Community Infrastructure Levy?
Your property could lie within an area affected by a Community Infrastructure Levy making the development liable for a charge under CIL. The Community Infrastructure Levy is a planning charge introduced by the Planning Act 2008 as a tool for local authorities in England and Wales to help deliver infrastructure to support the development of their area. It came into force on 6 April 2010 through the Community Infrastructure Levy Regulations 2010. Levy rates are expressed as pounds per square metre. These figures are applied to the gross internal floorspace of the net additional development liable for the levy.

Sell to a developer or self-build?
You can, of course, sell your plot to a developer without planning permission. This may not be so profitable but could release value more quickly and with less financial risk to yourself. Alternatively, you could sell an option over your land. You would then retain ownership until the developer exercises his option, usually when he obtains planning permission. Before deciding to go down this route, discuss your expectations and requirements with your solicitor who will protect your interests and help you maximise the value in your land. For example, she may suggest an uplift provision in the sale agreement. If the developer obtains planning permission, he must then pay you an agreed percentage of the increase in the value of the plot.

If you plan on staying in your current home, consider how you would feel living next door to a building site over which you have little control. What say would you have over the design or appearance of the new build? You could seek some safeguards in your agreement with the developer, but it may mean compromising elsewhere. You will have much more control if you develop the plot yourself. However, you will also have the challenge of running a building project. You will need to agree terms with the builder and manage all the other professionals and contractors involved. One possible solution is a turnkey design and build contract. In this arrangement a single company delivers your build to your specification.

Take specialist advice and plan ahead
If you decide to sell off part of your garden, be clear on the extent of the land you are transferring. This can help to avoid boundary disputes in the future. You will also need to ensure the two plots have any necessary rights over each other, which could include the right to run services, to parking or a right of way. If you are staying in your home, you may also want to limit further development or other activities on the land you are selling. You can usually do this by including a restrictive covenant in the transfer.

Talk to your solicitor. She will check all the legal aspects of your venture are in order. Her close personal attention will ensure that you can continue to enjoy your home if you choose to stay there alongside your new neighbours.

For further information about building in your back garden, or buying or selling a property in general, please contact Louise Webber on 01392 209202 or email louise.webber@rundlewalker.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.