Building fence on boundary line

[Al1son]

@DevilDamo thank you for your input

 

Personally I think I maybe on to something yes a footpath is a highway I agree but crucially the footpath is not used by vehicular traffic

 

The only other issue remains is the council classing my land that I am the owner of as amenity land and keeping the area open

 

I intend to appeal if the PO insists it is not PD

 

Will let you know the outcome regardless 

[saveasteading]

Just now, Al1son said:

amenity land and keeping the area open

 

As well as the open aspect being retained, might they be wanting line of sight for the bend in the road.

[joe90]

51 minutes ago, DevilDamo said:

Is this still being discussed!?! 😳

Yes, I don’t see how the council can say it’s amenity land but privately owned. The neighbour was allowed to enclose “their property” I get the “highway” argument so 1m only allowed but not the “amenity” argument. Our deeds show our boundary with the road being the hedge which is about 1m from the road giving a verge as part of the highway.

[joe90]

Just found this old thread, clear as mud.  

 

[Al1son]

We recently cleared the land it was overgrown, full of brambles, a bit of a jungle!

 

If the application gets refused we won't bother maintaining it!

 

It'll be no use to us, so why waste time and effort!

Edited July 25, 2022 by Al1son

[DevilDamo]

46 minutes ago, joe90 said:

Yes, I don’t see how the council can say it’s amenity land but privately owned.

It’s usually designate as such as part of the original Planning approval for the development. I’ve come across it a few times and a Full Planning application was required in both instances to change its use. I’m probably going to deal with another shortly too. Here is one of my posts where I took an extract from the PO’s report…

 

https://forum.buildhub.org.uk/topic/19521-building-fence-on-boundary-line/?do=findComment&comment=424389

 

[Ferdinand]

1 hour ago, joe90 said:

Yes, I don’t see how the council can say it’s amenity land but privately owned. The neighbour was allowed to enclose “their property” I get the “highway” argument so 1m only allowed but not the “amenity” argument. Our deeds show our boundary with the road being the hedge which is about 1m from the road giving a verge as part of the highway.

 

The concept of land use is separate from the concept of land ownership. Often supervening usage rights are held by third parties, such as Govt Departments.

 

For example, in many places the plot boundaries extend up to the middle of the road. So the land under the road is owned by the householder, but the road and the pavement have a supervening right to exist on it as a public use, and you will not get away with fencing in your portion of the road.

 

Similarly for a public footpath across a farmer's field, or a private ROW to access a mid-terrace via the back garden of the end terrace.

 

When I did a PP I proposed a road widening to accommodate a junction, and that required the land between people's fences across the road and the edge of the pavement. There was a great kerfuffle about "butbutbutbutbutthat'smygarden", but it had been "highway land' for at least half a century designated for a future widening of the A38 - which was exactly why the fences were set back a little - and the Highways Department of the CC were able to provide a map. 

 

I had a hell of a problem once when the buyer for our family's house of 38 years refused to believe we had a right to drive into our drive because the carriageway had been moved a few feet further away when they built the M1 as it was realigned in 196x. And documentation was light about who owned the bit of land where it had been moved.

 

I think in the present case the Council are going to insist on their amenity land unless you find a loophole that sticks, and have gone quite a long way in allowing even a 1m fence, as the character of the estate is fairly clearly designed to be open and a garden fence will disrupt that. And it is prominent.

 

I would go for a 2m fence around the side of the house to enclose a front to back private footpath, which route I do not think the OP has.

 

[Al1son]

 

 

 

[Kelvin]

There was a sort of similar case in the paper the other day where someone installed a 2m fence around the land that was part of their title deed but the council forced them to take it down because it wasn’t in keeping with the rest of the estate. The argument being that if they let everyone build 2m high fences on all these bits of land the estate would lose the openness 

[Al1son]

B6___2012_0217_39_Oaklands_Dr_COMPLETE.pdf

[Temp]

On 24/07/2022 at 01:03, Al1son said:

 

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.

 

 

I think it's really very clear from this that even if you prove the path is not a "highway used by vehicles" they will argue that the fencing effectively makes it an enclosed garden requiring planning planning permission for change of use.

 

 

 

[DevilDamo]

8 hours ago, Temp said:

 

I think it's really very clear from this that even if you prove the path is not a "highway used by vehicles" they will argue that the fencing effectively makes it an enclosed garden requiring planning planning permission for change of use.

Yes and a highway also includes a footpath, irrespective of who or what uses it, something which sounds like the OP is still trying to contest.

[Temp]

8 hours ago, DevilDamo said:

Yes and a highway also includes a footpath, irrespective of who or what uses it, something which sounds like the OP is still trying to contest.

 

Yes a footpath is a highway but she is pointing out the wording of the GPDO says "highway used by vehicular traffic". 

 

 

Quote

 

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;

 

 

 

I've been told cars can drive on the grass verge beside a road if the verge is part of the highway. However I think a Public Footpath or Bridleway (as shown on the County Footpath map) can only be used by vehicles where there is specific permission. The Highway code says:

 

Quote

Rule 145. You MUST NOT drive on or over a pavement, footpath or bridleway except to gain lawful access to property, or in the case of an emergency.

 

The "lawful access" bit I think refers to dropped kerb permission.

 

I'm trying to find out if this has been tested anywhere as I have a public footpath across my own garden and a paddock. I know its a "highway" but hope that doesn't mean people can use vehicles on it? eg Motorbikes? 

[Temp]

I found this planning application for a 1.8m wall adjacent to a footpath.. 

 

https://democracy.lichfielddc.gov.uk/CeConvert2PDF.aspx?MID=1089&F=Final non confidential Planning Committee Agenda and Reports 20.03.2017.pdf&A=1&R=0

 

16/00658/FUL
ERECTION OF 1.8M HIGH BRICK BOUNDARY WALL TO
THE SIDE OF THE PROPERTY
14 WATERS EDGE, HANDSACRE, RUGELEY.
FOR MS T PARKER
Registered 13/06/16
Parish: Armitage with Handsacre

 

Page 13 or 54..

Quote

Although a footpath is technically considered a highway the footpath in
question is not used by vehicles nor adjacent to a highway used by vehicles. As
such and in accordance with the Town and Country Planning (General Permitted
Development) Order 2015 the proposed development would normally be permitted
development.

 

Ping @Al1son

[Al1son]

@Temp thanks, i'm in the process of compiling similar cases where the application was approved.

 

I'm also seeking legal advice as to whether the council's position is correct and if I have good grounds to appeal 

[Temp]

I think its possible to make the case that the path isn't a highway used by vehicles so planning permission isn't needed for that reason.

 

Much harder to convince them it's not just an attempt to turn amenity land into garden and that would need planning permission.  

 

You might consider appealing and at the same time submit a compromise planning application? Say for change of use and a fence 1m back from the edge of the path? They might decide not to fight it to avoid the costs of the appeal.

 

 

 

 

 

[DevilDamo]

8 hours ago, Temp said:

Yes a footpath is a highway but she is pointing out the wording of the GPDO says "highway used by vehicular traffic".

https://forum.buildhub.org.uk/topic/19521-building-fence-on-boundary-line/?do=findComment&comment=424431

 

 

The OP will be wasting their time in trying to argue it. I rest my case and it’s beginning to be quite painful to try and prove otherwise. 

Edited July 26, 2022 by DevilDamo

[Al1son]

What is the decision making process when it comes to applications for lawful development certificates?

 

I understand the applicant has to specify what class of the GPDO that is being applied for

 

However I have seen many applications where the council refer to their local policies and the NPPF to reject applications even though it meets the use class that it was applied for!

 

Surely this is unfair, how does the homeowner have a chance of ever getting an application approved!?

 

This is not even stated in the GPDO technical guidance!

[Temp]

The planning portal says...

 

https://www.planningportal.co.uk/planning/planning-applications/consent-types/lawful-development-certificate

 

[Quote]The use of a land is deemed lawful if: 

• No enforcement action can be taken against the changes, whether this is a result of not requiring planning permission or because the time for enforcement has expired. 
• The requirements of any current enforcement notice are not being violated. 

[/Quote]

 

So in your case you are arguing planning permission isn't needed. That means they should only review your application against the GPDO.

 

If an application fails then Planning Permission is required so sometimes they comment on the policies and reasons for a likely refusal of Planning Permission. However the formal reasons for refusing the certificate should be limited to evidence that it does not meet the GPDO. Otherwise you can appeal. 

[Al1son]

@Temp the appeal you pinged me was an interesting read as it states

 

'Although a footpath is technically considered a highway the footpath in question is not used by vehicles nor adjacent to a highway used by vehicles. As such and in accordance with the Town and Country Planning (General Permitted Development) Order 2015 the proposed development would normally be permitted development'

 

The above exactly applies to my case, so I was wondering if the planning inspectorate concedes and accepts the above, could they still refuse and still argue that 'its 

landscaped amenity space which contributes to the open character of the footpath'?

Edited August 7, 2022 by Al1son

[Temp]

1 hour ago, Al1son said:

could they still refuse and still argue that 'its 

landscaped amenity space which contributes to the open character of the footpath

 

Yes. They already said...

 

Quote

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.

 

And we said before a "change of use" to private garden would require Planning Permission and an application for a Certificate would be refused.

 

So yes you need to provide evidence it is not amenity land but has always been private garden. I thought you were going to check your deeds and/or ask why they think it is amenity land?

 

 

 

[joe90]

Why not fence it like opposite and plant a hedge inside eventually you can trim it to the height you want, slowly slowly it will grow and people will get used to it. Saves all this fighting 🤷‍♂️. Frankly a panel fence will either get graffiti on it or get holes punched in it, or both. Difficult to damage a hedge over a picket fence.

[Al1son]

32 minutes ago, Temp said:

 

Yes. They already said...

 

 

And we said before a "change of use" to private garden would require Planning Permission and an application for a Certificate would be refused.

 

So yes you need to provide evidence it is not amenity land but has always been private garden. I thought you were going to check your deeds and/or ask why they think it is amenity land?

 

 

 

 

We are not intended to change the use of the land into a private garden. We just want to enclose the area curtilage of our boundary off to provide security, privacy, prevent littering and dog fouling etc

 

Deeds make no reference to the area being amenity land. I've asked the council to provide evidence i.e where it states it's amenity land including the land in 'pink' they refer to on the maps, its been over 2 weeks and no response is forthcoming

[Al1son]

25 minutes ago, joe90 said:

Why not fence it like opposite and plant a hedge inside eventually you can trim it to the height you want, slowly slowly it will grow and people will get used to it. Saves all this fighting 🤷‍♂️. Frankly a panel fence will either get graffiti on it or get holes punched in it, or both. Difficult to damage a hedge over a picket fence.

 

It's a narrow strip of land 1m wide further down the footpath it's 2 to 3m wide so a hedge will not be viable as it'll restrict access as we wish to install a gate to access the area

[Temp]

3 minutes ago, Al1son said:

We are not intended to change the use of the land into a private garden. 

 

If you put a 2m high fence around it then it certainly won't look like open amenity land, it will look like it's part of your private garden.