New homes have been built next to mine. Am I entitled to redress for the loss of privacy?

Property Clinic: The height of the boundary wall possibly breaches a planning condition

Stepped patterns of house construction create the potential for overlooking of adjoining properties. Photograph: iStock

Stepped patterns of house construction create the potential for overlooking of adjoining properties. Photograph: iStock

 

Q. A residential development has just been completed adjacent to my back garden. One of the attached planning conditions stated no boundary wall on to a third-party site was to be higher than the existing boundary or not more than two metres above the adjoining ground level, whichever was higher.

I believe there was always a clear conflict with this due to a change in the ground level permitted. The adjacent site always had a modest rise from my property but the developer was allowed to raise this by 1 metre, leaving a 1.5 metre difference between our sites. My understanding is “adjoining” refers to my ground level and the above condition was unenforceable.

The old boundary wall was retained. A new wall was built just inside this on the elevated site. The top of this is just over 3 metres high seen from my garden, well above the old boundary, but only 1.5 metres from the higher level, allowing the new residents views down and into my back garden. I now have a very high wall bordering my property that still compromises my privacy and will need to go higher still.

The whole thing is a mess. No details on the height of any boundary or my ground level were included in the developer’s planning application. However, I did reference my ground level in my objection so this information was available to the council. I am dismayed that a major feature of a development could be dealt with in such a haphazard way.

Given the negative impact, what rights do I have considering the development effectively conflicts with one of its own conditions and am I entitled to any redress for the loss of privacy suffered? (Photographs provided)

A. The situation you describe is a frequent occurrence in areas where houses are built on sloping ground such as hillsides. The resulting stepped pattern of house construction creates the potential for overlooking of adjoining properties if houseowners raise their gardens to achieve a horizontal surface. In such circumstances, many people feel that their amenity, including their privacy, is either not adequately protected by the planning process or that planning conditions are open to interpretation or not interpreted as intended.

The planning condition you refer to concerning the boundary wall height is, in my view, open to interpretation. It should have been specific as to which one of three ground levels it referred to, (a) the ground level on your site, (b) the existing ground level on the proposed development site at the time the condition was issued, or (c), the ground level on the proposed development site after it was raised by 1m.

If the height condition was intended to refer to a ground level that did not exist at the time it was written, ie (c), I believe it should have referred to as “the proposed ground level”. The condition referred to “a third party site” and, in the same sentence stated, “not more than two metres above the adjoining ground level”. It is understandable and reasonable that you interpreted this to refer to your ground level. Based on the wording of the condition, I believe that the height of the wall is possibly in breach of the planning condition. Ideally, all levels should be related to a nearby reference benchmark.

Planning file

I advise that you engage a chartered planning and development surveyor to examine the planning application, the conditions attached to the planning permission, the situation on site and to prepare a report and make a submission to the planning authority on your behalf. An inspection of the details submitted in relation to the wall construction and the raising of the ground by 1m will form part of the surveyor’s examination of the planning file.

If the development is found to be in breach of the planning conditions the planning authority will engage with the developer and will issue enforcement proceedings if necessary. Entitlement to redress may be difficult to establish unless your surveyor’s report found a significant breach of conditions or negligence on the part of the developer. Your solicitor will advise accordingly.

The photographs you provided indicate that the 3m wall is constructed using 215mm concrete blocks without visible evidence of structural support. In addition to its own weight, it is acting as a retaining wall due to the 1.5m difference in ground levels and is subject to wind loading. This 3m wall, including its foundation, requires an engineered solution to ensure its safety. The older 2m concrete block wall on your side does not provide structural support to the 3m wall. In the interests of health and safety, a certificate of compliance with the building regulations for the 3m wall should be sought from the developer, by your surveyor, to allay any concerns about its stability.

It is unfortunate that you are being put to the inconvenience and cost of having to deal with this situation. It would be unlikely to occur if there was a mandatory process for engaging with adjoining property owners’ priory to commencing such development works.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of SCSI, www.scsi.ie

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