Boundary issues - End Boundary position, garden size and landscaped area to side

[worstdecisionever?]

Please may I ask for feedback and helpful comments on best way forward regarding two boundary issues - Thank you!  And sorry for the long post

1. We have a garden that is smaller than sales literature, approved planning documents and our TP1 plan. The end boundary fence is incorrectly positioned.  We are one of 3 houses impacted. Our properties run alongside a public footpath. We are approximately a metre short in length and 7.5 sqm missing in all. We have a 'universal fence' running through the entire length of the end boundary, with no joins / fence posts at the relevant neighbour's boundary. It runs the length of several houses in one piece with no delineation per plot / property.

'Neighbour 1' - submitted their case and measurements on their TP1 plan to customer services.  The site managers measured and verbally confirmed his measurements but using the Architectural Drawings, not the TP1.  The other affected neighbour - 'Neighbour 2' - may have done the same, we are not sure. No visits to measure the garden for us or Neighbour 2.

We also measured our garden as-is, verses. the TP1 plan sizing, (we are still awaiting title deed), using a calibrated PDF measuring tool, just like Neighbour 1 did and sent it to Customer Services who responded and told us to get legal advice, we cannot measure it ourselves, and the TP1 is not a reliable basis for defining size and scope of our property.

We got advice -  Get everything in writing about planned changes, measurements, are they going to join the fences up per plot or leave it as is, what about landscaping, timescales, who will carry out the works, and how does this affect our two-year warranty, etc. Agree to nothing if we are unhappy with any of it at all, otherwise we will have legally accepted everything ("Acceptance")  and have little chance to change anything at all in future. 

While doing all this, I doublechecked the planning documents online too, where I noticed they mandate the footpath width behind our houses must be 5 metres.

We have followed up with CS and were told the query was with the site managers. No one came to measure our garden but we found out from Neighbour 1 a surveyor had measured around the back on the footpath, and then we found a red x marking where they plan to move our fence to (apparently). It will extend the garden by approximately half the size of our measurements based on the TP1.

Finally we heard verbally from one site manager and saw a tiny image on A3 paper for about  5 seconds which is the proposed boundary adjustment. The measurements are smaller - unsurprisingly - but appear at first glance to preserve the footpath width mandated at 5m at the expense of our garden sizing and end boundary location. They announced it would be done next week sometime.

I asked for electronic copies and then sent all the questions instructed by solicitors over too. I am still waiting for a response on the questions, but we received a tiny diagram about 1.5 inches square, low res. Neighbour 2 was certain the measurements are inaccurate, and he has significant planning experience.  Neighbour 1 has now decided they don't care about details, copies of changes, etc.,  and just want it sorted.

I've checked on the approved site plan online and the sales literature and the garden is smaller than shown on both these plus our TP1. As will the proposed extension be too.

What can I do now?


2. Side boundary with communal landscape area

We have a landscaped area with 4 drains, flowerbed and turf adjoining our house that is marked as outside our boundary at the side per the TP1 plan and other planning docs, and confirmed as communal during conveyancing.

At the front, we have the boundary line straight down from our house edge giving us ownership of approximately 0.5 m strip of this communal area as a flowerbed beside our path.  But, we think the entire landscaped area is incorrectly marked down as 'our plot'. I've written to CS with the marked up TP1 plan and been told it's .......with the site managers. We do not want to take ownership of a communal area per our transfer deed with 4 drains. We also specifically queried it during conveyancing, and it is definitely communal.

3. What happens to our TP1 plan regarding these changes to end boundary and garden and size, and communal area, if any changes go ahead in spite of our objections? Who has to update and submits changes to the Land Registry? Are the developers even acting appropriately here?

 Nothing is put in writing. If we contact CS we are told its with the site managers and rarely hear more. I'm worried they will simply show up and adjust as they see fit so we'll be stuck with a smaller garden and a dreadful side area to maintain.

Any advice most welcome, thank you!

[New Home Expert]

OK, you need to take all of this to your solicitor.  I would hope that it is not one recommended or suggested by the housebuilder.
If it is, then appoint a solicitor to act for you and your neighbours (share the cost with them in any event) and get some advice.

I would agree that a TP1 plan is not a means of proving or disproving the size of a plot or position of fences etc.
It has no dimensions from a defined point.  You should have been shown a site layout pan at 1:50 scale, which can be scaled to check measurements, but again not accurately.  All that can be done is to align the fence with other fixed pints such as house and other boundary fences and walls. 

From what you describe it would appear that the footpath may now have insufficient available space for 5m width and thy have taken a chunk of your garden to facilitate it.  It would also seem that the staff (sales and site manager) appear to agree it is wrong and agreed to re position the fence.

Yes once you have legally completed and if this isn't noted as "in dispute" or "on condition of" "subject to" in the transfer documentation, then you could be in a sold as seen situation.

Good news is the New Homes Quality Code of Practice requires housebuilders to provide all the information so you are fully aware of what it is you are buying. If anything is then changed they must inform you in writing.
You may not be able to use the New Homes Ombudsman if this builder is not registered with the NHQB though.

It would appear that this builder is already breaching the new Code of Practice as their customer service is dire!

[worstdecisionever?]

Thank you very much for your reply. 

I went back to the solicitor (thankfully our own choice, not the recommended Developer's one) who advised we now can only kind of sit back and wait after requesting the information at least 5 times in writing and objecting in writing several times too, stating we are not happy to proceed on this basis at this time without the requested information. We can't even get them to acknowledge we have objected. Honestly, it is ridiculous.

Today, our security camera captured footage of the Developer and what I guess was the fencing contractor measuring up behind our house at the end boundary, and they told Neighbour1 that this will all go ahead next week. Neighbour1 then told me the latest. All we hear from the Director of Customer Services is that this is with the Site Managers. It's a gigantic, and needless, hot mess.

The Solicitor advised us to submit a request - Data Subject Access Request - to the developer on the matter who then have 30 days to respond, or we follow up with the Information Commissioners Office to complain if they do not.

In the meantime, if they do go ahead with the boundary change in spite of objections and without sharing information - and I fear they will - then we need to get a survey done, and take it from there if they have done it incorrectly.

There is no way we can get anything done as they seem to be intent on bulldozing this through regardless, and as I understand it, they will do it next week. We don't even know which day it will be.  We are going to have to sit back and let them do it, although I will continue to send emails every day objecting and asking for information, and complain if they do go ahead.

If I may, I have a couple more questions - would the site plan you mention be the same as the one approved on the council's planning portal, or where can I get that?  We were not shown this in the sales process, only a 'salesified version' of the site plan. 

And on the code of practice, when does this apply?  We completed in December last year. I don't know if we are covered with the new code. Are there any other codes / standards we can review / which apply here to try to help us get the information they really ought to give us freely on the planned boundary changes?

And yes, dire is not the word.  We are due to have a face to face with their Customer Services Director after Easter on snagging (our snag list is too long and keeps increasing so they want to come and educate us on what is and isn't a snag), which is kind of weird and also worrying, We worry they come to fob us off in person. We'd really like this issue and our snags resolved so we can actually live in the house rather than exist pitifully around the disruption and stress and mess and the ongoing nightmare.  So, anyway, sorry for moaning and thank you again for you help on this.

[New Home Expert]

First thing you need to do right now, is take lots of photos of the boundary as it is now from both sides.
Photographs with a visible tape measure to to prove the position from say another fence or wall.

A Subject access Request is a good idea but it may be worth waiting until or should you have to take legal action.
In any event they could ignore it, send redacted copies and/or not send everything and the ICON could take over a year to act on your complaint too.

The new Code wont be any use for you as it didn't exist when you bought. You are stuck with the old Consumer Code for  Homebuilders which the new Code  it replaces for good reason!

[worstdecisionever?]

Thank you so much for your advice, we did take a lot of photos for our records and as per legal advice.

On the issue of getting information in writing, we got there in the end. We stuck to our guns and got the drawings and information after a lot of back and forth.

The boundary is moved, the fencing reinstalled, and now all we need to do is chase up after the landscaping which has not been done well and left us with holes in the garden from old fence posts, gaps and lumps and bumps, plus a trip hazard from the old garden edge which has been left as is and extends in a ridge across the lawn. 

[New Home Expert]

Pleased you got there in the end.
New home buyers shouldn't have to battle though.