wall proximity to cobb wall

wall proximity to cobb wall

Postby hobbyfarmer » Tue Apr 14, 2015 4:40 pm

My neighbour is responsible for the very delapidated, approx 7 foot high, cobb wall which sits on her land. When we moved in 5 yrs ago a builder told us the wall was beyond repair; this has been again highlighted recently. Our neighbour has done nothing to the wall in the last 5 yrs and many years previously.

On the land we own we built, 3 yrs ago, a concrete block wall 3 foot high (it is not on a public highway), the footings of which shored up and partially hid her wall. we built 1mtr away from her wall.
Recently we have had a red brick wall built 3 foot in front of our block wall the space which has been filled with soil which we plan to plant yew to hide the rest of her wall.
She then appeared with her solicitor to say we were in breach of planning laws as the concrete block wall was too close to her cobb wall which if she wanted to repair the builders would not be able to access it from our side. she also stated the wall could not breathe.

We have nothing in our deeds saying she has right of access to our land to maintain her wall, nor is it listed; i also understand we could have butted our wall right up to hers.

We have now had a visit from a planning officer saying that as two other properties have right of access along our private driveway, 7 metres from the red brick front wall (both these properties face the wall in question), the area of 3 foot which we have filled with soil could not be classed as curtilage & so we may require planning permission for this Red brick wall & infill. We know that the neighbour concerned with the complaint is likely to object to the wall even though the bit in question is not the Concrete block wall

We have said to the planning officer that if we removed the red brick wall then it would not be enclosed and so could we leave like that? Response was non-commital, but would not be nice for the neighours to look at.

What we have done is on our land, it does not affect anyone; it is not restricing any access or turning. In fact it has stopped the cobb wall falling on any delivery van who temps parks there to deliver to the properties. We are in a conservation area but it is not visible from the public highway and has actually enahnced our property and the view for those 2 neighours and their visitors/deliveries driving up the private driveway.

The planning officer doesn't think there will be a problem but has anyone else had a similar situation. Grateful for advice.
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Re: wall proximity to cobb wall

Postby ukmicky » Tue Apr 14, 2015 11:14 pm

Don't change anything

On the land we own we built, 3 yrs ago, a concrete block wall 3 foot high (it is not on a public highway), the footings of which shored up and partially hid her wall. we built 1mtr away from her wall.
Recently we have had a red brick wall built 3 foot in front of our block wall the space which has been filled with soil which we plan to plant yew to hide the rest of her wall.
She then appeared with her solicitor to say we were in breach of planning laws as the concrete block wall was too close to her cobb wall which if she wanted to repair the builders would not be able to access it from our side. she also stated the wall could not breathe.
We have nothing in our deeds saying she has right of access to our land to maintain her wall, nor is it listed; i also understand we could have butted our wall right up to hers..


Where do people find these solicitors from. Yes you could have built within a whisker of it if you wished and she has no legal right to access your land to maintain the wall unless she has access rights in the form of an easement. One thing though ,you may have checked your deeds but also check hers and the other neighbour as not all easements are recorded on (your) the servient tenements deeds ,so check hers.

We have now had a visit from a planning officer saying that as two other properties have right of access along our private driveway, 7 metres from the red brick front wall (both these properties face the wall in question), the area of 3 foot which we have filled with soil could not be classed as curtilage & so we may require planning permission for this Red brick wall & infill. We know that the neighbour concerned with the complaint is likely to object to the wall even though the bit in question is not the Concrete block wall

We have said to the planning officer that if we removed the red brick wall then it would not be enclosed and so could we leave like that? Response was non-committal, but would not be nice for the neighbours to look at
]

Did you notice he said may :) ,

First off private access rights have nothing to do with the council planning officer.
Secondly private access rights have no effect on what is curtilage and the council planning officer .
Thirdly I wouldn't be moving anything and I would be tempted to call the councils bluff and tell them I was not changing anything as its permitted development and if they wish to send an enforcement notice you will be taking it to appeal.
Fourthly if the neighbours don't like the look of something what the hell has it got to do with the planning officer if you haven't broken any planning laws. .

Maybe this person has a few friends in high places and they are hoping you will give in without checking it out first .

Pilman you know more on planning than me ,am I right ?
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Re: wall proximity to cobb wall

Postby mugwump » Wed Apr 15, 2015 6:48 am

I don't understand why you would plant trees in a raised bed. A few years down the line wouldn't that start causing problems?
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Re: wall proximity to cobb wall

Postby hobbyfarmer » Wed Apr 15, 2015 8:29 am

We are planting yews as a hedge; they will be the same hight; and continuation, as the rest of the hedge already running around the gardern. Sounds weird but we are on a slope so it does not look out of place. It will also hide the rest of the knackered cobb wall. From her side the cob wall is 10ft tall from ours its apprx 7 foot.

Thanks for your help
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Re: wall proximity to cobb wall

Postby Collaborate » Wed Apr 15, 2015 9:54 am

Under the Access to Neighbouring Land Act (http://www.legislation.gov.uk/ukpga/1992/23/contents) your neighbour can apply to the court if they need to come on to your land to carry out basic preservation works. It doesn't seem to me that you have prevented her from repairing her wall as you have left a 1m gap. However there is nothing in the Act to prevent you from building as close as you like to the cobb wall. You must always bear in mind the Party Wall Act, and what that says about the depth of your foundations near to a neighbour's existing structure.

I'm wondering though why you've gone to the trouble of building a 3foot high enclosure to plant trees intended to screen a 7 foot high wall. Can't you just have planted them in the ground?
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Re: wall proximity to cobb wall

Postby hobbyfarmer » Wed Apr 15, 2015 1:26 pm

We built the block wall to hide the cobb wall and also to give us privacy if/when it fell down.
this left an area of 3-4 foot infront of it of broken concete/weeds and useless ground before it met the tarmac. we had a lot of earth sitting around from aprevious works so decided to use that and create, i suppose, a bed. The red brick wall ties in with the wall from the rest of the garden and so just finishes of nicely what was a ugly neglected cobb wall and a piece of waste ground.

To dig up all the broken concrete and plant directly would not have looked right and would have caused considerable more work.
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Re: wall proximity to cobb wall

Postby MacadamB53 » Wed Apr 15, 2015 3:05 pm

Hi hobbyfarmer,

based on the planning officer's comments - and without seeing the layout - it sounds like the enclosure you've constructed might not stand within the curtilage of your house.

if so, then you'd be relying on Part 2, Class A of the Town and Country Planning (General Permitted Development) Order 1995 for approval - if not, then you'd be relying on Part 1, Class E.

if you're confident that what you've done was granted approval as per the above then you are entitled to appeal any enforcement action - should it materialise - and the Inspectorate's decision will indicate what to do next.

Kind regards, Mac
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Re: wall proximity to cobb wall

Postby ukmicky » Wed Apr 15, 2015 9:28 pm

MacadamB53 wrote:Hi hobbyfarmer,

based on the planning officer's comments - and without seeing the layout - it sounds like the enclosure you've constructed might not stand within the curtilage of your house.

if so, then you'd be relying on Part 2, Class A of the Town and Country Planning (General Permitted Development) Order 1995 for approval - if not, then you'd be relying on Part 1, Class E.

if you're confident that what you've done was granted approval as per the above then you are entitled to appeal any enforcement action - should it materialise - and the Inspectorate's decision will indicate what to do next.

Kind regards, Mac

Mac

I reading it that the planning officer is saying it may not be within the curtilage of the house because a ROW may run across the land. The OP will need to check if there is a ROW ,however even if there is ,the presence of a private ROW has no effect on whether the land is or is not part of the curtilage of the house.
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Re: wall proximity to cobb wall

Postby hobbyfarmer » Thu Apr 16, 2015 9:49 am

Hi

There is a right of access along the private roadway (which is how my drive is decribed in the deeds) for the two other properties, including their visitors/deliveries etc; to get to their dwellings. But unless persons' have business with me or the other two properties; there is no right of access along the private roadway for anyone else.

Within the area that the PO is not sure is in our curtilage is another building which we use daily and two areas of lawn which have beds and a hedge (ours) running along the boundary of one of the two properties

Don't know if this last bit is relevant or helps our case

Regards
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Re: wall proximity to cobb wall

Postby arborlad » Fri Apr 17, 2015 8:52 am

hobbyfarmer wrote:My neighbour is responsible for the very delapidated, approx 7 foot high, cobb wall which sits on her land.



Are you using cobb (cob) in its correct context, it normally forms part of a building, could it be a Cornish hedge or earth bank?
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smile...it confuses people
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Re: wall proximity to cobb wall

Postby hobbyfarmer » Fri Apr 17, 2015 11:04 am

ukmicky wrote:
MacadamB53 wrote:Hi hobbyfarmer,

Mac

I reading it that the planning officer is saying it may not be within the curtilage of the house because a ROW may run across the land. The OP will need to check if there is a ROW ,however even if there is ,the presence of a private ROW has no effect on whether the land is or is not part of the curtilage of the house.


There has been a development. We need planning permission. We have been told today by the PO that this is "classed as an Engineering Operation, therefore constituting a Development and not an Enclosure; so putting it outside Permitted Development". We have also been told that this land, that we own, is outside our curtilage due to it being shared land; shared by 2 other properties.

My husband explained to the PO that the land is NOT shared; its owned by us with a Right of Access over the private roadway for the other 2 properties. the PO is of the opinion that the two are the same.

This "Engineering Operation consituting a Devlopment", does seem to be a bit over the top to me for 2 x 3 foot high walls containing soil, which can not be seen from the road, is not infringing the rights that the other 2 properties have, or is it stopping any visiting trademen turning. These seem big words for something so piddly; to me a 'Development' is a building; something big. However, i am not a Planner, on the local council, or anything to do with law.

I would really appreciate advice on our chances of getting planning, given our neighbour does know people in high places. It annoys me that this neighbour can't even see it and is next door, not even one of the other 2 properties.

Oh; Cobb or Cob i am unsure of the spelling, but its a wall built of flints/stones and probly horsehair and pooh in olden days; clad in render and normally thatched on top; although this particular one has a rusted wriggly tin hat. Very common in Hampshire.

Many thanks
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Re: wall proximity to cobb wall

Postby ukmicky » Fri Apr 17, 2015 9:39 pm

You are allowed to develop your land that is within your curtilage under permitted development. I would ask the planning inspector to provide you with the legal authority that states that land which is within your planning unit cannot form part of your curtilage because a private ROW runs across it . The planning officers doesn't know what he is talking about and I would tell him that I disagree with his opinion and if he wishes to serve me with an enforcement notice I would be happy to take it to appeal.

You also have the option to apply for a certificate of lawfulness and if its refused you can appeal without waiting for an enforcement notice . He wont know anyone at the appeal

Let me just show you how dumb he is using a party wall case as my example.

A party wall type A is a shared structure where you and your neighbour have easement rights over the portion standing on each other land. The Law and property act 1925 deems it to be severed vertically with one side in your ownership on your side of the boundary and the other side being owned by your neighbour on his side of the boundary . Even though it is severed vertically you still retain easement rights over the side on the neighbour land nd he retains rights over your side.

Now you might think going by what your planning idiot is saying that your side off the partywall would not be within your curtilage as your neighbour has easement rights over it ,however when a planning authority refused planning permission because they said a party wall was shared and also half where it was severed vertically was actually over the boundary on the neighbours land the appeal court was asked to rule if this wall sat within the curtilage of the property applying for planning permission .

They not only ruled that the half on the claimants side was within their curtilage even though the neighbour had easement rights over it but also said that the side over the boundary was within their curtilage and both neighbours curtilage effectively crossed over onto each others land and had an area of shared curtilage.

Now that was a wall half on the neighbours side. This wall is actually totally on your land within your planning unit as they like to say . Its madness and I would stand for it. Is the PO friends with the neighbour or something.

I fully admit I am not an expert on planning matters but I don't think I am missing something. Pilman can you add something to this
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Re: wall proximity to cobb wall

Postby MacadamB53 » Sat Apr 18, 2015 12:20 am

Hi ukmicky,

I would ask the planning inspector to provide you with the legal authority that states that land which is within your planning unit cannot form part of your curtilage because a private ROW runs across it

I think the argument being made by the LPA is that the land is not part of the curtilage because it is cut off from the land directly associated with the dwelling rather than because there's a driveway per se, and maybe because land has not been serving the dwellinghouse in some necessary or useful manner (that would seem to be a fair conclusion based on what the OP has said...)

In Collins v Secretary of State for the Environment, the Court upheld that an area of rough grass largely neglected which lay beyond the lawns near the dwellinghouse did not form part of the curtilage because the land did not serve the dwellinghouse in some necessary or useful manner.

Hi hobbyfarmer,

ask the officer for an opinion on what could be done to make it into an enclosure if it is not already...

Kind regards, Mac
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Re: wall proximity to cobb wall

Postby ukmicky » Sat Apr 18, 2015 12:25 am

MacadamB53 wrote:Hi ukmicky,

I would ask the planning inspector to provide you with the legal authority that states that land which is within your planning unit cannot form part of your curtilage because a private ROW runs across it

I think the argument being made by the LPA is that the land is not part of the curtilage because it is cut off from the land directly associated with the dwelling rather than because there's a driveway per se, and maybe because land has not been serving the dwellinghouse in some necessary or useful manner (that would seem to be a fair conclusion based on what the OP has said...)

In Collins v Secretary of State for the Environment, the Court upheld that an area of rough grass largely neglected which lay beyond the lawns near the dwellinghouse did not form part of the curtilage because the land did not serve the dwellinghouse in some necessary or useful manner.

Hi hobbyfarmer,

ask the officer for an opinion on what could be done to make it into an enclosure if it is not already...

Kind regards, Mac



We have also been told that this land, that we own, is outside our curtilage due to it being shared land; shared by 2 other properties.

My husband explained to the PO that the land is NOT shared; its owned by us with a Right of Access over the private roadway for the other 2 properties. the PO is of the opinion that the two are the same
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Re: wall proximity to cobb wall

Postby hobbyfarmer » Sat Apr 18, 2015 8:01 pm

We have recieved the formal letter from the Borough Council in todays post:-

'Unauthorised wall and back fill of soil constituting the the raising of the levels of land and an engineering operation at...'

we can:
Remove the structure in its entirety;
submit a respospective planning application
or do nothing and wait for enforcement action to take place.


Regards
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