I’m worried that my neighbour’s extension will damage our retaining wall. What can I do?
Property Clinic: Nobody can encroach on your property without your consent
Where neighbouring houses are divided by a boundary wall, it is likely that the legal boundary runs along its centre.
I share an elevated boundary with my neighbour who subsequently applied for planning permission to extend and excavate part of my retaining walls and earthen support verges.
In lodging a planning observation, I anticipated the planner might have addressed some protections or inserted conditions cognisant of my rights of support, or at the very least cautioned against interference citing the risk of collapse with any disturbances to be made good. I was shocked to find that these potential concerns were ignored. Subsequently, many irregularities have surfaced, which I believe should render the entire grant void.
How successful might this approach be with An Bord Pleanála, and what exhibits should I include as a lay person?
It is understandable that you are concerned as you believe that part of your retaining walls and earthen support verges will be removed. However, the planning process deals with planning-related matters only and may not address such details. Details of structural issues are generally a matter for the applicant and his/her engineer or building surveyor, and boundary issues are a matter for the applicant and his/her neighbour.
I assume that there is a wall along your boundary. It is likely therefore that the legal boundary runs along the centre of this wall. It’s not clear if the support structures you refer to are on your side of the boundary or if they are on your neighbour’s side, but you refer to them as yours as they provide support to your shared boundary wall. If they are on your neighbour’s side, he/she would be entitled to remove them but is obliged to replace them with an equally stable support structure.
The details should be formally agreed in advance and when completed, would require certification by a chartered building surveyor or engineer. If the support structures are on your side, your neighbour’s proposed development would be encroaching on your property. The planning application form requests the applicant to state that he/she is the owner of the entire subject property, and if not, to provide evidence of consent of the owner of other property included in the application.
The planning process does not seek to verify the ownership information provided. It appears that your neighbour did not get your consent to encroach on to your property. Irrespective of the outcome of the planning application, whether at planning authority stage or on appeal to Bord Pleanála, your neighbour cannot encroach on, or interfere with your property without your consent. Your neighbour should bear the cost involved in relation to the boundary, irrespective of which side the support structures are located, as he/she has instigated the development.
An appeal to Bord Pleanála must be within the four-week time limit. I suggest that you engage a chartered planning and development surveyor or planning consultant and provide them with the relevant information, required for appeal.
These include the planning file reference number; addresses of both properties; name of planning authority; copy of acknowledgement of receipt of your submission to the planning authority; a plan outlining the existing situation with the legal boundary clearly marked and also indicating the support walls and earth bank; a plan indicating the extent of your neighbour’s proposal, also with the location of the legal boundary clearly marked; a written statement outlining your case and, if relevant, confirming if the information concerning ownership in the original application is incorrect; and photographs, preferably from an elevated position.
It is difficult to predict the outcome. However, as outlined above, you have overriding rights in relation to your boundary supports and/or encroachment. While it is possible to make a third-party submission yourself, I advise that you engage professional assistance as there may be other aspects that will strengthen your case.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland