Planning Permission on Fence

[Trw144]

Before I call the planning enforcement officer, can anyone tell me what the legal situation is...

 

The planning permission on our plot shows a hedgerow fronting the road that passes by, and it our intention to plant a hedgerow on this boundary. However, inside of this boundary, we have already erected a 6ft fence to give us privacy whilst the hedge grows, and ensure our two young children (3 and 5) are kept safely back from the road. Because of this, it would appear that someone has contacted the local planning enforcement officer to say that we are in breach of the planning as we have a fence, not a hedge.

 

My belief, rightly or wrongly, was that, provided I planted a hedge on the actual boundary of the property, then if I decided to lose a bit of garden and erect a fence on the inside of my boundary, then I am entitled to do this. Once the hedge has grown, no one will see my fence anyway. Does anyone have any experience or knowledge of this area?

 

[Ferdinand]

I think the complaint is probably wibble.

 

Quote

https://www.planningportal.co.uk/info/200130/common_projects/20/fences_gates_and_garden_walls

" You will need to apply for planning permission if you wish to erect or add to a fence, wall or gate and:

• it would be over 1 metre high and next to a highway used by vehicles (or the footpath of such a highway); or over 2 metres high elsewhere; or
• your right to put up or alter fences, walls and gates is removed by an article 4 direction or a planning condition; or
• your house is a listed building or in the curtilage of a listed building.
• the fence, wall or gate, or any other boundary involved, forms a boundary with a neighbouring listed building or its curtilage. "

There will be some distance which defines "next to a highway". Here I think if I put up say a 2m fence within 1m of a highway I might get called out on it if somebody complains.

 

Perhaps call your Duty Planner to find out what that distance is where you are under a different name before calling the Enforcement Officer.

 

If they continue to push, "I don't want people in the street watching my children" might help.

 

BTW while it is growing have you considered putting a dog proof child proof 1m chain link barrier in the middle of your hedge for the future? (With a hole for the hedgehogs).

 

Ferdinand

 

[Jeremy Harris]

It's a good example of people going out of their way to cause a nuisance about something that doesn't directly affect them, something that some seem inclined to do just because they enjoy complaining.........................

 

As above, it almost certainly won't be a planning issue.  We've done much the same by erecting a post and rail fences in front of, and behind, boundaries that have hedges (or will do once the hedge plants have grown).  In our case I told the planning officer that we were putting in post and rail fencing, with wire mesh behind, in order to secure the property and allow the hedges to get established.  I was told that as long as it complied (more or less) with the rules mentioned above then it was fine.  It was suggested, by the planning officer, that I might want to make the fence alongside the lane a bit higher than 1m, as in his view there was no highways visibility issue, it being a very narrow single track lane that has virtually no traffic on it.  Our fence behind where the hedge will be is a bit over 2m high, from the level of the lane, as it's on top of a steep bank, but that's fine as it's not a boundary fence.

 

 

Edited March 9, 2017 by JSHarris

[Trw144]

Thanks Ferdinand, yes I think the grey area is what the term "next to a highway means". From the road in-front of the property, I have a 1.1m wide pavement (just installed), around 800mm for the hedge to be planted, and then my fence. At the end of the day, the hedge will eventually grow above the fence so it does nt really make any difference.

[Trw144]

3 minutes ago, JSHarris said:

 

It's a good example of people going out of their way to cause a nuisance about something that doesn't directly affect them, something that some seem inclined to do just because they enjoy complaining.........................

 

 

 

Yep, I suspect it was the same person who complained that I was damaging an oak tree by stacking soil up against it - there was nt any soil within 5m of it, and then the same person who complained that my house had a silver finish and did nt look very nice - its what you and I know as the vapour barrier on a timber frame before its rendered/clad.

 

I m hopeful that when I say a hedge is going to be planted then they will just say fine

[Jeremy Harris]

My only encounter with an enforcement officer was over a public footpath that had been moved a fair distance and was crossing the first plot we tried to buy.  He was a pretty pragmatic chap, who seemed reluctant to take action and would rather the two parties involved (not us, the vendor and the neighbour) resolve the boundary problem between them and then put in an application to change the route of a footpath if need be.

[ProDave]

This is a very grey area.  It's not usually a case of how far the fence is from the road, but if it is between the building line of the house, and the road, it WILL need planning permission for a fence over 1 metre high, even if the fence is only 6" out from the wall of the house.

 

In practical terms I can see why you have put the fence there, and someone is just trying to cause you trouble. Unfortunately the council may feel they need to be seen to be impartially upholding the planning rules, and you don't have PP for a fence, so they would be quite entitled to enforce you to remove it.  Perhaps a compromise would be to agree it is only temporary while the hedge grows and for them to grant temporary permission for the fence?

 

I had a similar situation in my very first house. the back garden fronted onto a road. As far as planning law was concerned that garden was between the building line and the road, so as far as planning law was concerned anything there needed PP, so I had to get PP to move my fence by about a metre, and erect a garden shed.  The silly thing was the real front garden of the house did not front a public road, so I could have put up a tall fence and put my shed there in the front garden without needing PP, but it would have looked quite ridiculous.

[Ferdinand]

Disagree with @ProDave. Is Scotland different?

 

My local authority told me that under 2m was OK in front of the building line.

And the Planning Portal interactive house has a picture of a front fence with my above quote:

https://interactive.planningportal.co.uk/detached-house/outside

 

Check with your LA via the Duty Planner.

 

Ferdinand

Edited March 9, 2017 by Ferdinand

[ToughButterCup]

Let it all wash over you until someone threatens a course of action which will hit you right in the bank balance. This has little to do with the fence or law.

Be warned by the lack of polite initial contact "How's the fence-building going then?" followed by a light hearted discussion. Some other agenda is playing itself out, and likely as not, you'll never know.

 

Wait, force delay, prevaricate, forget, refuse signed-for mail, look the other way,  until your bank balance is attacked. Unpleasant, yes. But low-energy. Low worry.

If, on the other hand, the complainant asks to chat, engage, smile, reassure. Agree.

 

[ProDave]

I would wait and see what the council say. My experience was several years ago with South Oxfordshire District Council and then, most definitely, if the fence was anywhere between the house and the road, then over 1 metre needed planning permission.

 

That link you posted is very vague. It says 1 metre next to a road, 2 metres otherwise. so would it be okay to move it in 6 inches so it's no longer "next to a road" and build it 2 metres high? I think not. I think that is trying (very poorly) to describe the between a house and the road rule.

[Calvinmiddle]

Wait to see what the enforcement office says, I had several dealing with ours.

 

Best one was that the fence along the neighbours had a condition saying it had to be at least 2m high, but I showed that fence going all the way to the footpath.

 

When I was putting posts in neighbour came over and complained that he wouldn't be able to see when reversing out of his drive.  By this stage we weren't talking so I totally ignored him which pissed him off then finally I said it was part of the planning and I had no choice.

 

Enforcement came round and was friendly  enough and said he thought the condition was ambiguous, but later his boss overruled him.

 

I had always planned to stop the fence 0.5 from the footpath and slope from 1m to 2.0, but was being awkward.  When I told this to the enforcement officer I said I wanted his assurance that he wouldn't be coming round later as there wasn't a 2m high fence to the boundary.

 

He also said they had to follow up when someone made a complaint, even if they thought it was nonsense, they had to.  So have a chat with him and see what he says, try your best not to be defensive or confrontational and if he mentions the lack of planning say you were advised that it's under pd rights as is not over 2m and not next to the highway

[Trw144]

Just found this on the planning resource website...

 

Is a two foot gap between a 2m high fence/gate and the back of the public footpath sufficient to be held not to be "adjacent" to the public highway?

The point here is that if not deemed to be "adjacent" to a public highway this fence would be permitted development by virtue of Part 2 of the General Permitted Development Order 1995. This question has arisen at appeal several times and Development Control Practice at (12.31) contains a number of relevant case summaries. The thrust of these decisions is that a wall or fence may be sited back from the edge of a highway and still be "adjacent" to it provided that the function of the enclosure is clearly to define the boundary of the property concerned from the highway. As each situation is different there is no common standard for setback distance that may be deduced from cases. An appeal decision from Tunbridge Wells determined last month is of interest as here an inspector concluded that an enclosure which lay 1.7m behind a footway was not adjacent to it. The situation here was that there was a substantial bed containing young trees and shrubs in front of the fence in dispute. The inspector felt that this bed was a feature of some substance in its own right separating the fence from the footway. In addition the inspector averred that the distance which separated the fence from a person standing on the footway was such that the person could not touch the fence without entering the land belonging to the property. This he argued meant that there was no sense of "immediacy or proximity" of the fence.

 

Going from the above, as I see it, in my case, the boundary of the property from the highway (and legally in terms of my plot) is the hedge that will be planted, and therefore the fence is not "adjacent/next to" the highway and therefore falls under permitted development.

[Trw144]

Here s a pic..

[ToughButterCup]

The fence exists.

The hedge is about to be growing.

Your intention is clear.

Explain to those who have a right to ask.

Ignore everything until there is a credible threat to your bank balance.

Take the fence down when you say you will.

Pass 'Go', collect £200

Ian

[ProDave]

So it looks like in 1995 (my situation was before that) they replaced a perfectly clear guidance (between the house and the highway = 1M max permitted development) with an ambiguous guidance (adjacent = 1M max, not adjacent = 2M max)

 

So now the guidance is so ambiguous that it is open to interpretation and there is no guarantee if what you are proposing is allowed under PD or not. Only a planning officer and / a court can now decide that.

 

Assuming the edging stone you have laid marks the edge of the footpath, I would say you can touch your fence from the footpath so does not meet the situation in the example above. Get that hedge planted ASAP to reinforce your argument that the fence is not "adjacent" to the highway

 

I am not trying to be awkward, but I still think a neighbour, particularly one who does not like what you are doing, would be justified in raising this with the council, who would have to investigate. They may or may not decide the fence is okay. but looking at the street, everyone else has a low wall, sometimes with a tall hedge behind it

 

There is also the issue of when do Permitted development rights start?  I thought it was not until the house was complete, so if that is the case, regardless of the height, you have no permitted development rights just yet anyway?

 

Also check your visibilty splay requirements for the entrance. I had to have a certain visibility distance at a height of 1.02 metres, 2.4 metres back from the edge of the road. Or to put it another way, I would not be allowed to have a hedge or fence higher than 1.02 metres high, less than 2.4 metres from the road. Yours looks closer than that.

[Trw144]

That gap is longer than an arm so you would have to trespass!

[MikeSharp01]

Call it a site hoarding - that you have made to look in keeping rather than a somewhat crasly painted OSB thing. They defo cannot stop you then as it will say somewhere in your PP / BC pack that you must erect and maintain a secure boundary I suspect - it does in ours (Kent).

[Trw144]

I ll say it's a temporary fence - until my children are 16!

[Trw144]

1 hour ago, ProDave said:

 

There is also the issue of when do Permitted development rights start?  I thought it was not until the house was complete, so if that is the case, regardless of the height, you have no permitted development rights just yet anyway?

 

 

 

Trying to find the answer to this - cannot find an exact answer online. Some suggest when it is lived in, others that it has to be finished.

[AliG]

@ProDave @Ferdinand The rules do seem to be stricter in Scotland as you cannot be over 1m if in front of the principle elevation, whereas in England it is only if next to the road.

 

I was all set to replace the hedge in front of my house with something similar, fence plus hedge, until I saw this rule. I am hoping that we can do it by amending our site plan rather than a new permission.

 

Can the same not be done in this case. Can the fence not be added to the site plan as a non material variation. Plainly a fence behind a hedge so it cannot be seen makes no difference to anyone. TBH I suspect the enforcement officer will take that view and just not care.

Edited March 9, 2017 by AliG

[Jeremy Harris]

I would also say it was needed for site security at the moment, as building sites are dangerous and you have a duty of care to prevent "accidental" entry.  Then I'd argue that the hedge you are going to plant is intended to be like that on the opposite side of the road, but until it has established itself and grown to the required height (and hedges, aren't subject to the same daft restrictions as fences - I have no idea why) you need the fence in order to prevent your young children from running out into the road. 

 

I don't think an enforcement officer could realistically do a thing right now, and would almost certainly just note the situation and mark the issue as dealt with.

[Trw144]

Enforcement officer is back in tomorrow so will update accordingly....

[ProDave]

1 hour ago, AliG said:

@ProDave @Ferdinand The rules do seem to be stricter in Scotland as you cannot be over 1m if in front of the principle elevation, whereas in England it is only if next to the road.

 

I think all that has happened, is Scotland kept the old system as it always used to be in England, nice and clear (if slightly more restrictive) but England changed their rules to something much more open to different interpretations.

[Trw144]

13 minutes ago, ProDave said:

I think all that has happened, is Scotland kept the old system as it always used to be in England, nice and clear (if slightly more restrictive) but England changed their rules to something much more open to different interpretations.

 

So when Scotland devolve and we have to build a wall adjacent to the A74,  who's rules are we going to follow? Or should we keep it simple and make it a hedge?

[Calvinmiddle]

3 hours ago, Trw144 said:

 

Trying to find the answer to this - cannot find an exact answer online. Some suggest when it is lived in, others that it has to be finished.

 

I looked at this well and I think it's up to each council to decide, I found ones where it had to have a completion certificate, or be materially finished (?) or even to when PP had been started.  A very very grey area