Building fence on boundary line

[Al1son]

1 hour ago, kommando said:

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.  

 

That's useful, thanks!

 

 

The council have used the Milton Keynes example for my case stating that the redways in MK can be used by cyclists.

 

I'm pretty sure In my case the footpath is not a redway, for argument sake if the council concede and accept the footpath is not to be used by cyclists, could they argue the other points they have raised i.e it is not in keeping with the openeess of the area, open character of the footpath, using the neighbours example of erecting a 1m fence, it's amenity land etc

Edited July 24, 2022 by Al1son

[ProDave]

All they have said is you cannot erect the fence under permitted development / lawful development certificate.

 

Your 2 choices now are just do it and hope, or apply for planning permission and if that is rejected consider an appeal.

[kommando]

You have to refute all their issues not just a few, if they raise 5 then refuting 3 does not win 3:2 only 5:0 wins, you have to refute all points they raise except when they raise 2 points that are the opposite of each other. You need to look up their procedures and see if for example they can add extra points later or you could end up hitting moles only for them to add new holes with new moles needing whacking. 

[Al1son]

25 minutes ago, kommando said:

You have to refute all their issues not just a few, if they raise 5 then refuting 3 does not win 3:2 only 5:0 wins, you have to refute all points they raise except when they raise 2 points that are the opposite of each other. You need to look up their procedures and see if for example they can add extra points later or you could end up hitting moles only for them to add new holes with new moles needing whacking. 

 

This is the problem I'm finding, there procedures in terms of how they asses applications is non existent I couldn't find anything on the council website.

 

Whatever I've found and quoted in earlier posts is from other online sources

 

At the minute I'm communicating with the case officer via email who is trying to convince me to accept their offer of a 1m fence.

 

Do I request an appeal now? or do I continue to communicate with the case officer? and make the point that cycles cannot be used on footpaths and refer them to the legislation?

Edited July 24, 2022 by Al1son

[kommando]

You are in an informal route currently which is unlikely to have procedures you can find or follow. You need to get it into a formal route such as a planning application where there are procedures to follow and you can study them in advance. So as an example the planning rules will have dates for objections to be finalised which stops more being raised after the objections are neutralised by an appeal. 

[joe90]

I appealed myself but involving a planning application including many things. I found it easier than dealing with the planners.

[DevilDamo]

I’m a little confused as to what you’re still asking or pursuing. They have refused the CoL as the 2m high fence would be positioned to a highway. The Permitted Development Handbook states…

 

“Highway” – is a public right of way such as a public road, public footpath and bridleway. For the purposes of the Order it also includes unadopted streets or private ways.

 

They also mention the amenity land aspect, which is more common than you may think. Although within your legal ownership, you would need to submit a Full application to change its use from amenity to a private garden. At the same time, you’d include the erection of a 2m high fence.

 

Have you gone back through your legal documents, e.g. title register and plan as amenity land, etc… is usually mentioned there?

[Al1son]

26 minutes ago, DevilDamo said:

I’m a little confused as to what you’re still asking or pursuing. They have refused the CoL as the 2m high fence would be positioned to a highway. The Permitted Development Handbook states…

 

“Highway” – is a public right of way such as a public road, public footpath and bridleway. For the purposes of the Order it also includes unadopted streets or private ways.

 

They also mention the amenity land aspect, which is more common than you may think. Although within your legal ownership, you would need to submit a Full application to change its use from amenity to a private garden. At the same time, you’d include the erection of a 2m high fence.

 

Have you gone back through your legal documents, e.g. title register and plan as amenity land, etc… is usually mentioned there?

 

@DevilDamo I'm asking whether the case officer has made the right judgement and whether I should dispute/appeal the decision. I have not received an official decision the case officer has been communicating with me via email explaining the reasons and that I should accept a 1m fence. If I read correctly they have also indicated a change of use application will also be refused.

 

The council cited the Milton Keynes redways example but as pointed out earlier cycles are not classed as vehicular traffic and not permitted on footpaths so in light of this my thinking is that they have made the wrong decision?

 

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.  

 

 

I have checked the title deeds there is no mention that the strip of land is amenity land

 

The application was for proposed use not change of use we are merely requesting to erect a 2m fence to enclose the boundary curtilage of our land which will provide security, privacy and prevent littering and dog fouling. The strip of land is overgrown waste land

 

Edited July 24, 2022 by Al1son

[ProDave]

1 minute ago, Al1son said:

I'm asking whether the case officer has made the right judgement and whether I should dispute/appeal the decision. I have not received an official decision the case officer has been communicating with me via email explaining the reasons and that I should accept a 1m fence. If I read correctly they have also indicated a change of use application will also be refused.

 

The council cited the Milton Keynes redways example but as pointed out earlier cycles are not classed as vehicular traffic and not permitted on footpaths so in light of this my thinking is that they have made the wrong decision?

 

So reply to your PO stating this is a footpath with no right for bicycles so it is not a "Highway" and so the MK case does not apply.  State you will make a planning application of LD is refused, and if that is refused on the same basis you will appeal as this is not a "Highway"

 

That will show you are determined.

[Al1son]

1 minute ago, ProDave said:

So reply to your PO stating this is a footpath with no right for bicycles so it is not a "Highway" and so the MK case does not apply.  State you will make a planning application of LD is refused, and if that is refused on the same basis you will appeal as this is not a "Highway"

 

That will show you are determined.

 

That's exactly what I was planning to do, but not sure how I can get around and argue the amenity land and not in keeping with the openesss of the area point the council are making

[joe90]

2 minutes ago, Al1son said:

argue the amenity land and not in keeping with the openesss of the area point the council are making

That depends on your deeds and any covenant on the land, not what the council “thinks”

[Al1son]

18 minutes ago, joe90 said:

That depends on your deeds and any covenant on the land, not what the council “thinks”

 

Agree, checked title deeds nothing mentioned regarding amenity land or covenants 

[joe90]

9 minutes ago, Al1son said:

 

Agree, checked title deeds nothing mentioned regarding amenity land or covenants 

Then I think the council are on dodgy grounds. I would be tempted to tell them you ARE Going to erect your fence unless they can give you evidence that backs up their assumptions.

[Al1son]

8 minutes ago, joe90 said:

Then I think the council are on dodgy grounds. I would be tempted to tell them you ARE Going to erect your fence unless they can give you evidence that backs up their assumptions.

 

Will respond back to the case officer, hopefully he accepts my findings! Will keep you updated, thanks!

[DevilDamo]

1 hour ago, Al1son said:

 

@DevilDamo I'm asking whether the case officer has made the right judgement and whether I should dispute/appeal the decision. I have not received an official decision the case officer has been communicating with me via email explaining the reasons and that I should accept a 1m fence. If I read correctly they have also indicated a change of use application will also be refused.

 

The council cited the Milton Keynes redways example but as pointed out earlier cycles are not classed as vehicular traffic and not permitted on footpaths so in light of this my thinking is that they have made the wrong decision?

 

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.  

 

 

I have checked the title deeds there is no mention that the strip of land is amenity land

 

The application was for proposed use not change of use we are merely requesting to erect a 2m fence to enclose the boundary curtilage of our land which will provide security, privacy and prevent littering and dog fouling. The strip of land is overgrown waste land

 

Sorry if I’m being thick. But what does it matter if cycles use a footpath or road that deems it as a highway? Does it have anything to do with the links you or the PO had provided? The definition of a highway (as mentioned) includes a public footpath. So under PD, you cannot erect a 2m high fence in that position. That is what the PO has stated. Anything above 1m would require full Planning.

 

As for the amenity land, that would usually be tied to the original Planning approval for your property/development. How old is it?

Edited July 24, 2022 by DevilDamo

[DevilDamo]

I’ve been involved in a couple similar situations. At first it was refused and the PO states…

 

”The change of use of the land from open space to residential along with the enclosure and block paving thereof would encroach upon, and result in the loss of a open space in a prominent position which makes a valuable contribution to the visual amenity and the character of the area. The land has not been demonstrated to be surplus to requirements and no provision for any replacement area has been made therefore the proposal would be harmful to the overall quantum of public open space, to the open and spacious character of the area.”

 

After a few discussions, we re-submitted and was approved.

[Al1son]

@DevilDamo

 

The GDPO 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;

 

 

In my case it's a public footpath not used by vehicular traffic the council have cited the Milton Keynes example stating bicycle are classed as vehicular traffic that applies to redways. As far as I know our footpath is not a redway

 

The property I believe was built in the 70's

 

Edited July 24, 2022 by Al1son

[DevilDamo]

Right I see. I don’t believe that is the most up to date version as changes are yet to be implemented.

 

Have a read of this…

 

https://planningjungle.com/2016/04/18/important-dclg-has-updated-its-permitted-development-rights-for-householders-technical-guidance-document-april-2016/

(Scroll down to “The definition of the term "highway" (page 6):)

 

The definition is on Page 6 of the Technical Handbook and that is what PO’s refer to.

 

Check the original Planning approval for what they have deemed and allocated as amenity land. No doubt this is what the Council are referring to. 

Edited July 24, 2022 by DevilDamo

[Al1son]

19 minutes ago, DevilDamo said:

Right I see. I don’t believe that is the most up to date version as changes are yet to be implemented.

 

Have a read of this…

 

https://planningjungle.com/2016/04/18/important-dclg-has-updated-its-permitted-development-rights-for-householders-technical-guidance-document-april-2016/

(Scroll down to “The definition of the term "highway" (page 6):)

 

The definition is on Page 6 of the Technical Handbook and that is what PO’s refer to.

 

Check the original Planning approval for what they have deemed and allocated as amenity land. No doubt this is what the Council are referring to. 

 

@DevilDamo But it makes no reference to 'vehicular traffic'!?

I've been looking at the legislation website

 

https://www.legislation.gov.uk/uksi/2015/596/schedule/2/part/2/crossheading/class-a-gates-fences-walls-etc/made

 

 

Also I submitted an enquiry to the council to determine if PD rights were in intact, this is the response I received

 

Permitted Development rights have partly been removed

 

This planning reference relates to the site address provided. The decision notice states “ That no development, including any development permitted by the Town and Country Planning ( General Development) Order 1963 (other than the erection of a fence or footpath) shall be carried out

 

It also states

 

To ensure the land coloured in pink on the enclosed plan remains available for use for public open space purposes in accordance with its allocation and designated for such use on the first quinquennial review of the development plan, submitted to the ministry of housing and local government 

 

The above was mentioned in the development application for the area.

 

There is no plan in the doc highlighting the pink area they refer to

[joe90]

Ha, as I am bored (don’t ask) I looked at a cycling forum and loads of threads about cycles being a vehicle or not, I found this one funny.  Well I got refused service at a McDonald's Drive-Through (long story, don't ask) about a month ago because my bike (with trailer) was not a vehicle. Apparently it's Health-and-Safety! The great legal mind behind the counter was not to persuaded otherwise...
 

[DevilDamo]

@Al1son

[Al1son]

@DevilDamo yep that's the one that the case officer sent me in the email. But as pointed out my footpath is not a redway

 

Although that appeal was dismissed, a full planning application was submitted which was approved, can be found here

 

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

 

[DevilDamo]

It doesn't matter if cyclists use it or not (in trying to argue cyclists should not ride on footpaths). That will not wash. What is the view with mobility scooters because after all... they are motorised and do provide a means for a rider to travel? So under the PI's view, the use of that footpath for scooters would also amount to vehicular traffic.

 

In Planning/PD terms, the footpath is seen as a highway so anything erected above 1m adjacent to it, would require Planning. It's that simple. You can choose to Appeal your LDC application, which will be dismissed or submit a full Planning application. Those are your only two options. They may not refuse the full Planning application on the basis of there being a 2m high fence, but as they have mentioned before, it seems the use of this land would be enough to warrant a refusal. This "pink" land must be represented somewhere and if not readily available, ask the Council for a copy of the mentioned plan.

[Al1son]

@DevilDamo the law states public footpaths are for pedestrians only on foot, therefore how could the footpath be deemed to be “adjacent to a highway used by vehicular traffic”?

[ProDave]

Would a compromise here be a 1M fence on the boundary and a 2M fence a short distance in from the boundary (so it is not "adjacent" ) and fill the gap with some low maintenance shrubs?