Building fence on boundary line

[Al1son]

We have some land to the right hand side of our property, which is our boundary, total length is approx 24 metres.

 

We would like to install 6 ft close board fence panels from a safety and security perspective and will give us more garden space

 

However adjacent to the land is a footpath

 

I found this online with regards to the regulations

 

"No planning permission is required for a wall or fence that is under 2m in height. However, if that wall or fence is adjacent to a highway (including a footpath) then the height of a wall or fence cannot exceed 1m without planning permission"

 

However i am not sure what 'highway' exactly refers to, is it the pavement, road or footpath? Or all?

 

Can i install a 2m fence without planning permission?

 

Pics attached highlighting the area where we wish to erect a fence etc

 

https://ibb.co/xX6GdPt
https://ibb.co/WkQMxFR
https://ibb.co/wwZPGx8
https://ibb.co/5FKBTf0
https://ibb.co/1LnDK5n
https://ibb.co/93XRyZ7

Edited February 28, 2021 by Al1son

[Dave Jones]

im sure it will be fine a normal 1.8m fence, saying that for peace of mind give planning a call. Tell them what your proposing and see what they say. It would help if you could reference similar fencing adjacent to footpaths in your area as a precedent.

[Al1son]

Just now, Dave Jones said:

im sure it will be fine a normal 1.8m fence, saying that for peace of mind give planning a call. Tell them what your proposing and see what they say. It would help if you could reference similar fencing adjacent to footpaths in your area as a precedent.

 

What concerns me is that as their is a footpath that the council may insist that i put in an application

 

The neighbour on their side have erected palisade fencing which is 1m high

[Dave Jones]

18 minutes ago, Al1son said:

 

What concerns me is that as their is a footpath that the council may insist that i put in an application

 

The neighbour on their side have erected palisade fencing which is 1m high

 

it's highway which has the 1m restriction not a footpath.

[Al1son]

19 minutes ago, Dave Jones said:

 

it's highway which has the 1m restriction not a footpath.

 

But the statement below states including footpath?

 

"No planning permission is required for a wall or fence that is under 2m in height. However, if that wall or fence is adjacent to a highway (including a footpath) then the height of a wall or fence cannot exceed 1m without planning permission

 

Have you seen the images?

 

 

Edited February 28, 2021 by Al1son

[Al1son]

I understand "Highway" is not defined, and it can include paths and roads

[mvincentd]

I would choose to interpret that as meaning a road regardless of whether the road has a footpath alongside......so not pertaining to a path that hasn't got a road alongside....like yours.

It's probably with drivers line of sight in mind. If you're lacking confidence to forge ahead then perhaps query it with your local highways officer rather than alert planning.

[DevilDamo]

Although "highway" is not defined in the Order, common law usage is that a highway is a way over which the public are entitled to pass and re-pass, including a footpath.

You will therefore require Planning to erect a wall or fence over 1m in that location.

[Tony K]

On 28/02/2021 at 23:08, DevilDamo said:

Although "highway" is not defined in the Order, common law usage is that a highway is a way over which the public are entitled to pass and re-pass, including a footpath.

You will therefore require Planning to erect a wall or fence over 1m in that location.

 

@Al1son There are three things I would add to the correct advice given already by @DevilDamo 

 

1. Explore fully whether the path is one over which the public have the right to pass. Even if the wider estate is owned by the Council, the pathway may be for residents only (i.e not for the public, regardless of whether they actually use it anyway), and if the estate is private (i.e the open areas outside the houses are not maintained by the Council) then it is likely the path is not public. Look for signs around the estate saying 'private, residents only' etc. 

 

2. If you do need planning permission then either accept it and apply, or accept the risk of putting up the fence without permission. A great many houses get a slightly rougher deal in terms of needing planning permission when their neighbours do not. A classic example is of a house at the very end of a street, adjacent to another road. A fence over one metre high in the location marked in red needs planning permission, where all the ones in green do not:

 

 

The good news is that no sensible planning department is going to refuse a decent tall fence in the red locations. The bad news is they can't help the fact that you technically need planning permission, and can't give you a short cut to the system. An application may be overkill, but it is legally necessary if you are adjacent to a highway. Of course, you could just build it and see if they come and make you take it down. They probably won't, but there is a risk there, and its probably not to be advised therefore given the relative costs of an application vs the fence itself. 

 

3. Check your deeds. Even if you don't need (or you obtain) planning permission, some estates have restrictive covenants in the deeds preventing tall fences. That's nothing to do with the planning dept, and you should consider it sepeatly.

 

Good luck!

[Dave Jones]

Letter to planning, do I need planning for fence ? Reply back 'no' crack on 'yes' bang in an application.

[DevilDamo]

56 minutes ago, Dave Jones said:

Letter to planning, do I need planning for fence ? Reply back 'no' crack on 'yes' bang in an application.

That may have worked many years ago but not now. It’s now more of a case, submit a CoL application and they’ll tell you whether or not it’s PD.

[Dave Jones]

7 hours ago, DevilDamo said:

That may have worked many years ago but not now. It’s now more of a case, submit a CoL application and they’ll tell you whether or not it’s PD.

Not really. Councils have to offer pre application advice sone even make a small charge. Nothing stopping a call to a planning officer and simply asking the question as well .if you can get through!

[DevilDamo]

5 hours ago, Dave Jones said:

Not really. Councils have to offer pre application advice sone even make a small charge. Nothing stopping a call to a planning officer and simply asking the question as well .if you can get through!

No they don’t. One LPA near me suspended their Pre-app service around 4/5 years ago. However, the majority of LPA’s do offer it. That process isn’t for people to ask whether they need Planning or not as that is what the CoL application process is for. Pre-app relates to formal and Full Planning applications where Council’s advise on compliance with policy.

Edited March 6, 2021 by DevilDamo

[Tony K]

My own advice is to never, ever rely on a phone call to the planning department, or even a letter /email. 

 

Firstly your likely to get through to some kind of generic reception, or at best the admin department of the planning office. Actual planning officers are now so thin on the ground and often dealing with large workloads that the last thing they are allowed to do is answer general enquiries. 

 

Secondly, even if you get a reply it'll either just direct you to generic information sources (not helpful to you in this case) or offer an informal view that comes with a disclaimer, and so doesn't offer any protection. 

 

As @DevilDamo says, you can apply for a certificate of lawfulness, but if you're going to do that you may as well just apply for planning permission.

 

Personally I'd be tempted to just put the fence up. Based on the photos enforcement action seems unlikely, but there is a risk of course. 

[Al1son]

For the benefit of others...

 

Shedule 2, Part 2 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 which defines what permission is granted that allows fences to be erected.

 

PART 2
Minor operations
Class A - gates, fences, walls etc
Permitted development
A. The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.

Development not permitted
A.1 Development is not permitted by Class A if-
(a) the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed-
(i) for a school, 2 metres above ground level, provided that any part of the gate, fence, wall or means of enclosure which is more than 1 metre above ground level does not create an obstruction to the view of persons using the highway as to be likely to cause danger to such persons;
(ii) in any other case, 1 metre above ground level;

(b) the height of any other gate, fence, wall or means of enclosure erected or constructed would exceed 2 metres above ground level;

(c) the height of any gate, fence, wall or other means of enclosure maintained, improved or altered would, as a result of the development, exceed its former height or the height referred to in paragraph (a) or (b) as the height appropriate to it if erected or constructed, whichever is the greater; or

(d) it would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building.

 

In my case a public footpath is not a highway used by vehicular traffic.

 

Which means that a fence with a maximum height of 2 metres can be erected on my land even if it is next to a public footpath.

 

The GPDO grants planning permission for a 2m tall fence adjacent to a highway UNLESS said highway is used by motor vehicles - where it must be 1m tall instead.

[DevilDamo]

1 hour ago, Al1son said:

The GPDO grants planning permission

If it’s PD, there is no ‘granting’ of Planning permission.

 

Btw, be weary as to what the LPA may consider as being adjacent to a highway, in particular this bottom corner. Anything higher than 1m that wraps around the front would in theory require Planning.

[Al1son]

9 hours ago, DevilDamo said:

If it’s PD, there is no ‘granting’ of Planning permission.

 

Btw, be weary as to what the LPA may consider as being adjacent to a highway, in particular this bottom corner. Anything higher than 1m that wraps around the front would in theory require Planning.

 

That area will remain as is it, the gate will be parallel to the garage corner of the property

 

Pics below, the orange line is where the gate will be to allow for access, beyond that the red line is where the fence will be erected

 

https://ibb.co/rpKLGB6
https://ibb.co/yRrN68d

[Jilly]

Why not put the 1m fence up and then grow a hedge. Plants don't need planning permission afaik, apart from leylandii .

[Al1son]

1 hour ago, Jilly said:

Why not put the 1m fence up and then grow a hedge. Plants don't need planning permission afaik, apart from leylandii .

 

Looking for something that doesn't need to be maintained which is why i prefer the fence option

[Al1son]

Hi @DevilDamo

 

We decided to submit an application for a lawful development certificate proposed use to erect a 2m fence along the boundary line of our property. I'm disappointed to say the least but the council are stating I can only erect a 1m fence on my land which I own

 

Is it worth pursuing this further to challenge their decision and appeal? or do I concede and accept? I would appreciate your advice

 

Council response below:....

 

unfortunately I do not believe your proposal would accord with the relevant class under the General Permitted Development Order (GPDO). Part 2 Class A of the GPDO permits the erection of fences, subject to accordance with guidelines outlined in paragraph A.1. Part a states:

 

 

the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed—

 

(i) for a school, 2 metres above ground level, provided that any part of the gate, fence, wall or means of enclosure which is more than 1 metre above ground level does not create an obstruction to the view of persons using the highway as to be likely to cause danger to such persons;

 

(ii) in any other case, 1 metre above ground level;

 

From assessment of your proposal, the footpath which runs between no.51 and no.53 is an adopted highway and therefore the height of your fence should not exceed 1 metre. Footpaths are still classified as highways. Furthermore, it is important to recognise the use of the land as landscaped amenity land which is important in retaining the open character of this footpath. On this basis, the erection of any fence in this location should ensure that the use of this land is amenity land and not private garden, otherwise a change of use application would be required. This would also be unlikely to be supported due to the importance of this land in the character of the streetscene.

 

 

In short, we could accept a fence similar to that at no.51, as this would be lawful under this application. However, enclosure of this land should not result in a change of use of the land. I would therefore recommend that you amend your proposal if you wish to proceed with it to accord with the GPDO. If you have any questions about the information above please do let me know.

 

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I responded back stating that the GDPO, there is no reference to an "adopted highway" instead it refers to "a highway used by vehicular traffic".

 

Also, the land is not amenity land, it is part of my private garden, and provided title plan, the council responded as below:

 

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A highway used by vehicular traffic does not limit itself to motorised vehicles, nor should it be open to all forms of vehicles. As this footpath is open to pedestrians and cyclists it would still fall within the definition of ‘A highway used by vehicular traffic’. The proposal therefore does not accord with Paragraph A.1. I have attached an appeal decision which outlined this matter in further detail.

 

With regards to the issue of private garden, whilst I do accept it is within your title deeds in planning terms it is still landscaped amenity space which contributes to the open character of the footpath. It is not private garden space. With this in mind, any fence erected, should still maintain the open character of the area, a 1m fence would do this as I suggested in my previous email.

 

The fence at no.51 was considered to be acceptable as it restricted access to their land without reducing the open nature of this path. This is something which would be permitted along the border of your land, however, a 2m fence would impact upon this openness.

 

Therefore, as I stated in my previous email, I suggest you revise your proposal to accord with the relevant class under the GPDO.

 

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In the second response the council cited this previous application in Milton Keynes for rejecting the application which refers to redways and also the MK example the fence would be setback 0.6m from the highway whereas our proposed 2m fence will be setback over 6m from the road!

 

Also to note I found out that although the MK case was refused the owners submitted a full planning application which was approved!

 

Links below

 

https://publicaccess2.milton-keynes.gov.uk/online-applications/applicationDetails.do?keyVal=O66YW4KWN5700&activeTab=summary

 

https://publicaccess2.milton-keynes.gov.uk/online-applications/applicationDetails.do?keyVal=OLEYOIKWG0F00&activeTab=summary

 

[bassanclan]

Cyclists are not permitted to ride on footpaths unless there is a specific order allowing them to do so e.g. cycle lane. I do not believe that it is a highway.

I would try and establish whether cycles are permitted to use it and then appeal

[joe90]

7 hours ago, Al1son said:

With regards to the issue of private garden, whilst I do accept it is within your title deeds in planning terms it is still landscaped amenity space

Our planners tried to tell us some of our garden was not “garden”. Bloody planners (I won at appeal).

[Al1son]

2 hours ago, bassanclan said:

Cyclists are not permitted to ride on footpaths unless there is a specific order allowing them to do so e.g. cycle lane. I do not believe that it is a highway.

I would try and establish whether cycles are permitted to use it and then appeal

 

What I found strange was that they class cyclist's as vehicular traffic!?

 

How could I establish whether cycle's are permitted to use the footpath?

 

The strip of land we own, at the minute, it's wasteland, we want to erect a 2m fence so we can enclose it which will prevent littering, dog fouling and provide security and privacy. The application we submitted was for proposed use

 

The council are claiming it's an adopted road and it's landscaped amenity land even though we maintain that land ourselves!

 

I was under the impression that for applications for lawful development that they only check whether it meets the criteria of the law you are specifying from the GDPO. I found the below on another councils website

 

Applications for Lawful Development Certificates are not planning applications - they allow the Council to consider whether planning permission is or is not required for a proposal  . As such, the planning merits raised by these applications cannot be taken into account by the Local Planning Authority at any stage in the assessment of such an application; it is simply a technical assessment made using evidence, fact, and consideration of the permitted development rights. The Local Planning Authority has no discretion in this and can only consider whether, on the facts of the case and relevant planning law, the specific matter is or would be lawful. If the local planning authority is satisfied with information satisfying them of the lawfulness at the time of the application, it must grant a lawful development certificate to that effect.

 

I also read elsewhere..

 

Neighbours can object at this stage; however, only objections as to whether the development is lawful or not (i.e. whether the work is covered by permitted development or not) will be taken into consideration. Any objections about privacy/loss of natural light/disturbance etc will be disregarded.

 

 

 

 

It appears my council are using other reasons to reject such as not in keeping with the openeess of the area, open character of the footpath, using the neighbours example of erecting a 1m fence so I must do the same! etc - are they allowed to do this?

 

 

Edited July 24, 2022 by Al1son

[Al1son]

1 hour ago, joe90 said:

Our planners tried to tell us some of our garden was not “garden”. Bloody planners (I won at appeal).

 

Did you appeal yourself or get a planner/solicitor involved? Could you kindly share a copy of your appeal? That I could perhaps utilise and amend accordingly?

[kommando]

Road Traffic Act 1988

 

https://www.legislation.gov.uk/ukpga/1988/52/part/VII/crossheading/interpretation

 

• “cycle” means a bicycle, a tricycle, or a cycle having four or more wheels, not being in any case a motor vehicle,

• “footpath”, in relation to England and Wales, means a way over which the public have a right of way on foot only,

 

So by calling it a Footpath excludes use by cycles, and even allowing cycles does not make it a vehicular highway as a cycle is not a vehicle.  

Edited July 24, 2022 by kommando
added sentance