Change of use - Private Open Land to Private Garden

[Shadowkat]

Hi,

We have recently moved into a property and are looking to utilise all the garden space.

Currently the garden is separated by a 2m wall which we want to knock down and extend the garden into the unused space in Picture A and Picture B (yellow line depicts where the 2m wall is currently). We originally wanted to place fencing behind the small wall but pre planning advice has let us know that it will be rejected as it "will negatively impact the character and appearance of the local area". We have attached the Pre Planning Advice Response for reference.

So our second thought was to knock the small wall down and erect 1m high rail fencing and plant some 2m high hedging as we know that doing both of these, should not require planning permission. 

However we have been advised that this will also require planning permission to change the use of the land from from private open space to private garden land. In our Deeds (Picture C) or on our Title Plan (Picture D) it does not show a separation the the two area. We then asked the council to provide where they have acquired this information from and they sent us through an image of the original landscaping plan with a clear divide (Picture E) with this email;

 

"I have attached an extract from the landscaping plan as part of the original planning application which informed my assessment. The plan shows the dwarf wall, the planting location to the rear and then the location of your boundary fence to your garden. Similarly, the planning layouts also show a clear division between the rear garden of the properties and the current wall position. It is for this reason that I concluded that this land is used as strategic landscaping / amenity land.  Your proposal would materially change the use of the land from amenity space to garden land and therefore a change of use planning application would be required."

 

No one maintains the area, and it is full of weeds and litter. We believe it is our responsibility to maintain it but we have no access to the area and we would not benefit from putting any effort in, as we do not use or see the space.

 

We now don't know what to do, where to start, or whether it will be futile trying to get the change of use in the first place.

TIA.

 

Pre Planning Advice Response Letter.pdf Pre Planning Advice Response Report.pdf

[joe90]

Well I had to google “private open space “ as I had not heard of that before 

 

private open space means land that is privately owned and used for practising of sport, play- or leisure facilities or used as a botanical garden, cemetery or nature area.

 

surely that’s the same as garden?. It’s mad that’s it’s yours but you can’t access it!. I would get fast growing trees planted inside the low outside wall ASAP. Yes I have heard of a 1meter limit on boundary walls/fencing. If your deeds show no wall I would argue that point.

 

15 hours ago, Shadowkat said:

 

"I have attached an extract from the landscaping plan as part of the original planning application which informed my assessment. The plan shows the dwarf wall, the planting location to the rear and then the location of your boundary fence to your garden. Similarly, the planning layouts also show a clear division between the rear garden of the properties and the current wall position. It is for this reason that I concluded that this land is used as strategic landscaping / amenity land.  Your proposal would materially change the use of the land from amenity space to garden land and therefore a change of use planning application would be required."

I wonder if the landscaping plan trumps the deeds (need a planning solicitor fir that). Your planner “concludes” , our planners concluded many things but i proved them wrong. Till the hedge has grown sufficiently why not knock a gateway in the tall wall so you can use the area the think of removing it later (when no one can see it ?).

Edited August 25, 2021 by joe90

[Temp]

I might be wrong but i thought you only need planning permission for "change use" if the two uses are in different "use classes". I thought PP wasn't needed if they are in the same use class? In which case the question is.  Are "Private open space" and "Private Garden" both in the same class?

 

Unfortunately this page doesn't seem to help. Might be necessary to look at the "Use Classes Act", I think that's what its called.

 

https://www.planningportal.co.uk/info/200130/common_projects/9/change_of_use

 

 

 

Edited August 25, 2021 by Temp

[Temp]

This page hasseveral definitions of Private Open space...

 

https://www.lawinsider.com/dictionary/private-open-space

 

private open space means land that is privately owned and used for practising of sport, play- or leisure facilities or used as a botanical garden, cemetery or nature area. Sample 1 Sample 2 Sample 3 Based on 23 documents Save Copy

 

private open space means an area external to a building (including an area of land, terrace, balcony or deck) that is used for private outdoor purposes ancillary to the use of the building.

 

private open space means an area external to a building (including an area of land, terrace, balcony or deck) that is used for private outdoor purposes ancillary to the use of the building. "property vegetation plan" mean a property vegetation plan approved under Part 4 of the Native Vegetation Act 2003 before the repeal of that Act (as continued in force by the regulations under the Biodiversity Conservation Act 2016 ). "pub" means licensed premises under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises.

 

private open space means an open space to which the general public has no right of access and which is used as a private sport and play ground or as an ornamental garden;

 

Would need to look and see where they come from to check if relevant. Edit: most seem to be from overseas documents,.

 

Edited August 25, 2021 by Temp

[Saffy]

@Shadowkat please let me know what happened with this as we are in a very similar situation now. 
 

Thank you!