Misleading information and fencing in contravention of planning consent 

The buyer’s claim

The buyer claimed they were told the home would be the same as the show home but there were several elements that differed including no window in one of the bathrooms and lapped fencing in the garden instead of the brickwork with close boarded fencing that was stipulated in the planning consent.

The buyer also claimed there were other outstanding defects and wanted all the issues to be rectified.

The builder’s defence

The builder claimed the alleged defects did not fall under the Code but should instead be decided under the resolution system provided by the Warranty Provider. The builder also claimed the sales agent would not have suggested the home was the same as the show home, but that it was the same house type. However, they agreed they should supply brickwork in the garden although there was no need to replace the fencing.

In response to the Proposed Decision, the builder offered to make a payment of £5,000 in respect of the fencing and certain brickwork that it had already agreed to undertake.

The adjudicator’s findings

The adjudicator noted it is probable that the show home would differ in a number of ways including furnishings and garden landscaping and that a purchaser would reasonably have understood that not everything would be the same.

However, it was misleading to describe the show home as “the same” when the construction was different, and whilst the buyer may have been shown plans indicating some plots did not have a bathroom window, the buyer may not have realised this applied to them and as such was considered an issue which would affect a prospective purchaser’s buying decision.

The adjudicator also found that if the construction of the fences was intended to depart from the planning permission, the builder would reasonably be expected to inform the buyer as a matter that might affect the purchasing decision, and the buyer would reasonably be concerned about future enforcement action by the council, particularly as the fencing and brickwork were already in place at the time of reservation.

Learning points

For buyers:

• It’s a good idea to confirm in writing any information given to you in conversation with builders or their sales staff, particularly if you are relying on that information to inform your buying decision.
• Show homes can be a useful indicator of the type of home you will be purchasing, but there are usually many differences. To avoid misunderstandings, ask your builder to specify what will be the same and what will be different so that you’re clear about your purchase before you reserve.
• You can expect your builder to comply with planning conditions. Under the Fifth Edition of the Code, your builder must provide you with the planning consent reference number. Most local authorities offer an online planning portal where you can look up the relevant application and any associated conditions. Your solicitor is also responsible for highlighting any concerns about planning consent.

For builders:

• Make sure all your customer-facing staff are trained on the Code and refresh their training annually. This can help avoid the risk of ambiguous statements and encourage staff to provide clear information in plain English.
• You are responsible for meeting planning conditions allocated to your site. This includes specific conditions relating to individual homes to avoid the risk of homeowners becoming liable for breaches in future. Under the Fifth Edition of the Code, you are required to provide the planning consent reference number to buyers as part of the pre-contract information.

Adjudication Case HOME007213