Fence Adjacent to Highway Issue

Fence Adjacent to Highway Issue

Postby constance_gardener » Mon Mar 23, 2015 6:30 pm

Hi There can anyone help in this long running saga?

We had our exterior boundaries marked by the Highways department due to neighbourhood issues we wanted to bring in the land on the side of the house in to the garden.

A nice chap named Barry Smart (no longer there) came out and marked everything up for us.
We live on a corner, at the time he stated we could have a 6ft fence as long a we werent blocking line of sight.
So duly we worked within this, the council had spoken.

The fence had to be changed as a lady crashed through ours, did I say we live on the corner and are subject to this a lot of the time? So the new fence adequately slows people down because it reduces line of sight, most neighbours are really happy but one has complained. I received a planning enforcement breach.

The council asked me to reply within 28day (8mths ago). Having not heard from them I chased it up being perfect weather for digging holes.

They have decided not to answer anything I put forward 8mths a go and have just written a letter similar to the one originally received.

There is a covenant on the corner to disallow parking (inline with the Highway Code), the council refuse to look in to this and all is available at Land Registry(they have confirmed the have access to these records).

I explained that there was a rotten fruit tree on our land that we removed after checking all entities we could. From what I can gather this is the line I should have worked to, it was just over a meter back from the pathway with the road then running alongside.

So I see the Highways say as long as line of site is adequate they are happy with a meter back. However the council want me to bring it 2.25 meter back. Yet of course i could grow Leylandii in that space without issue, ahhh the doubled edged sword.

So yes ok hands up the Highways man was wrong and I need to move the fence, but I do not agree to 2.25m. Especially when the council will not do anything to allay speeding on the corner and leave us at risk. Last years lady through the fence is not the only problem we have experienced. You will know that one of the reasons Insurance is greater living on the corner is due to the fact people lose control on corners. This also relates to parking on corners but also the fact they reduce the carriageway to a single track.

So just for my ease, we had an apple tree approx 1m from the path, from what I can gather if the fence was inside of where the tree once stood that planning wouldnt have been able to get involved?
That 1m and excess line of sight (also considering the aboce) should be adequate to resolve the issue.
There is also an obstruction to the right of the fence that is of greater height.
The fence is a screen fence with sight gaps horizontally through it, again this seemed to be complicit with planning regulations.

There are many issues with line of site on our bendy and steep hill, there are constant obstructions that make it unsafe but we get on with it. Howeve the council have not recognised any of these.

Both my mother and I are quite unwell and could do without being bullied by the council, so can anyone offer any advice on this please?

Amy happy to dig out plans so you can see the area but its a trip in to the loft

Thanks all
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Re: Fence Adjacent to Highway Issue

Postby MacadamB53 » Mon Mar 23, 2015 6:55 pm

Hi constance,

I need to move the fence, but I do not agree to 2.25m

all the details you've provided about sight lines, whilst not completely immaterial, are not really connected to the issue.

by constructing a fence you have carried out what is considered 'development' in planning terms.
all development requires planning permission.
the government issued an order in 1995 granting planning permission for lots of 'development' like constructing fences.
this order stipulated the conditions under which planning permission would be granted without the need for a planning application.
with regards to fences there were a few, one which was that planning permission would not be given if:

"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 one metre above ground level"

if you've been served an enforcement notice that is because your LPA consider the fence constitutes a breach of planning as they consider any fence to be 'adjacent' to the highway unless it is set back 2.25m.

the word 'adjacent' has no legal definition and the 1995 order doesn't expand on it so each LPA is free to make a reasonable guess (this doesn't necessarily mean they're right though).

you have 4 options:

1. ignore the enforcement notice - things will escalate and you'll end up in court
2. comply with the enforcement notice - job done
3. appeal the enforcement notice - ask the planning inspectorate to decide if the fence is 'adjacent'
4. submit a planning application to obtain planning permission for the fence

Kind regards, Mac
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Re: Fence Adjacent to Highway Issue

Postby constance_gardener » Mon Mar 23, 2015 7:15 pm

By all accounts though if they are now saying 2.25m then it would seem its unlikely to get permission?

I have contacted Highways to see what their stance is after it being them that gave me this impression.

If I have a inspector, isnt it down to me to pay some sort of extortionate amount for this?

It seems strange when law says one things and the council another.
The tree seems to have been something that we should be able to utilise here.
The issues about road saefty, even though it is down to them to keep the roads safe?

Why if it puts us at risk do we not have equal consideration? All these things are contractual surely? This means equal consideration and I cannot see any consideration coming from them.

They do not answer questions, refuse to investigate, wont even talk to other depts at the council.
How can this possibly be right?
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Re: Fence Adjacent to Highway Issue

Postby constance_gardener » Mon Mar 23, 2015 7:23 pm

So the best way forward it to plant these Leylandii? lol :wink:
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Re: Fence Adjacent to Highway Issue

Postby constance_gardener » Mon Mar 23, 2015 7:29 pm

So having checked a number of posts here and other places I find Highways are agreeing to moving 1m back.

I also checked the GPD and see this paragraph:

(6) The permission granted by Schedule 2 shall not, except in relation to development permitted by Parts 9, 11, 13 or 30, authorise any development which requires or involves the formation, laying out or material widening of a means of access to an existing highway which is a trunk road or classified road, or creates an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons.

(the fact we have slowed traffic would make me think we have in fact made the road safer)


So again if line of sight is open further surely they cant put up another obstacle to 1m back?
Just is case its been lost, we did not obscure the line of sight that was marked initally by Highways.

I dont want a battle but dont want the 15years of problems to continue, its been hell living here at times.
The site land would be used asa dumping ground, came back on numerous ocassions to find dumped debris. The local residents use it as a dog toilet meaing again we are at risk, being of low immunity we cannot afford this. Kids think its great to play football against the house also. Then we have the multiple accidents. i dont want it to be the house next time. It was a close call last year.
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Re: Fence Adjacent to Highway Issue

Postby MacadamB53 » Mon Mar 23, 2015 7:51 pm

Hi constance,

Highways are agreeing to moving 1m back

what do you mean?

you seem to be confusing matters because you keep referring to safety issues.

the ONLY issue here is whether you've carried out development without the required planning permission.

your LPA are of the opinion that you have because they consider the fence to be 'adjacent' to a highway used by vehicular traffic.

how far from the highway is your fence? (highway includes pavement)

Kind regards, Mac
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Re: Fence Adjacent to Highway Issue

Postby constance_gardener » Mon Mar 23, 2015 8:20 pm

Its only 25cm from the pavement.

So it doesnt matter that cars crash in to us and the council refuse to do anything?
So again why is there no consoderation?

What I said was that Highways seem to agree with a meter when I look at other cases.

I cant see how to add the Land Registry plan?

However if we move it back to extend the line of sight (that hasnt been blocked) then surely under section 6 should be ok?

Aagin I think I'll be buying leylandii!!!
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Re: Fence Adjacent to Highway Issue

Postby mr sheen » Mon Mar 23, 2015 9:11 pm

You can either continue to force the hard-pressed council to waste more time and money on your case or you can settle the matter simply by complying with the rules.
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Re: Fence Adjacent to Highway Issue

Postby MacadamB53 » Mon Mar 23, 2015 9:14 pm

Hi constance,

Its only 25cm from the pavement

I take it you concede that 25cm might be 'adjacent' - in which case you must accept that a breach of planning has occurred.

your LPA has provide guidance on how far 'adjacent' extends in their opinion - 2.25m (or is that 2m and you've got it a bit muddled?).

so, back to your options:

1. ignore the enforcement notice - things will escalate and you'll end up in court
2. comply with the enforcement notice - job done
3. appeal the enforcement notice - ask the planning inspectorate to decide if the action required as per the notice is appropriate (ie. would shifting it back eg just the one metre be satisfactory)
4. submit a planning application to obtain planning permission for the fence

Kind regards, Mac
edit: what was the "effective date" mentioned on the original enforcement notice?
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Re: Fence Adjacent to Highway Issue

Postby JohnP1950 » Thu Mar 26, 2015 4:19 am

How long has the fence (or a previous one with the same height) been there? You seem to imply this is a long-term issue. I could be wrong, but I believe that if development such as a fence goes unchallenged for four years, the LA don't have powers to enforce removal. (If I am wrong, I'm sure someone will provide the correct info.)
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Re: Fence Adjacent to Highway Issue

Postby jdfi » Sat Apr 04, 2015 4:15 pm

Don't move the fence. Make it on the boundary line of the land you are possessing, but one metre where it is adjacent to the highway.
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Re: Fence Adjacent to Highway Issue

Postby ukmicky » Sat Apr 04, 2015 5:49 pm

Devils advocate

By placing the fence you may have slowed most traffic down which you feel to some degree justifies your actions. However by removing the sight lines have you also prevented pedestrians etc from viewing on coming traffic and seeing someone who you haven't slowed down before they cross the road.

Also what about traffic that is allowed to travel above the national speed limit such as the emergency services, have you by removing the sight lines made there travel along the road more hazardous.

If an accident occurred and someone was killed and it was partly due to you illegally removing the sight lines you could be held liable to some degree for the death.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Fence Adjacent to Highway Issue

Postby constance_gardener » Fri May 01, 2015 12:36 am

Hi everyone, thanks for your thoughts so far.

To answer the last first, the line of sight was marked out by Barry from Highways.
So we are within line of sight.

However to answer another, its obstructs my view of pedestrians but not my view of the corner.
This is why I want to move it a metre back. You guys are right no one wants to be hurt.

Including us of course, the external wall is normally where people land when they lose control.
It would likely cause a gas explosion and the house to collapse beneath the room my unwell mother spends most of her time.
This relates to the parked cars causing a single carriageway and peoples speeds around the 90 degree bend we live on.
This aside, I am trying to address that as I have been made there is a no parking covenant and the police seem supportive.

Back to the boundary, a metre fence would leave us open to theft and vandalism.
But building on that, the hedge I planted still has a few remaining after some had to be dug up for the fence posts.
In view if other posts on here, could I drop it to 1m and move the other hedging back in to where it was?
People are suggesting this is OK, let it grow, much of the hedging is now close to 5ft?

On the next 90 degree bend which goes to a dead end there are 13 x 6' feather edged panels enclosing the entire corner up to the path. Does anyone have an idea why it is so different?

A final question? I have found a solicitors letter advising there was planning permission granted with the house to enclose the entire boundary. I have asked enforcement but can't get an answer. Would the normal part of the planning department have this on record as the web search only covers the last few years.

Thanks again
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Re: Fence Adjacent to Highway Issue

Postby MacadamB53 » Fri May 01, 2015 8:20 am

Hi constance,

could I drop it to 1m and move the other hedging back in to where it was?

yes you could - and the 1m fence would have planning approval as per the GPDO (mentioned in my first response)

People are suggesting this is OK, let it grow, much of the hedging is now close to 5ft?

those people are correct - hedges are not 'development' so do not require planning approval.

Does anyone have an idea why it is so different?

if you mean "why are they allowed a tall fence when I'm not?" then the answer could simply be that they applied for and gained planning approval - which is an option open to you

Would the normal part of the planning department have this on record

yes they would - are you hoping the approved plan sets out that the "enclose the entire boundary" stipulates fences above 1m where they would be adjacent to the highway?

could you please answer my previous question about the enforcement notice - I'm trying to help you after all...

Kind regards, Mac
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Re: Fence Adjacent to Highway Issue

Postby Collaborate » Fri May 01, 2015 9:29 am

MacadamB53 wrote:Hi constance,

could I drop it to 1m and move the other hedging back in to where it was?

yes you could - and the 1m fence would have planning approval as per the GPDO (mentioned in my first response)

People are suggesting this is OK, let it grow, much of the hedging is now close to 5ft?

those people are correct - hedges are not 'development' so do not require planning approval.

Does anyone have an idea why it is so different?

if you mean "why are they allowed a tall fence when I'm not?" then the answer could simply be that they applied for and gained planning approval - which is an option open to you

Would the normal part of the planning department have this on record



yes they would - are you hoping the approved plan sets out that the "enclose the entire boundary" stipulates fences above 1m where they would be adjacent to the highway?

could you please answer my previous question about the enforcement notice - I'm trying to help you after all...

Kind regards, Mac


+1

a metre fence would leave us open to theft and vandalism. Blimey - where do you live? It can't be that bad surely!!

You must forget what Barry said. He's not from planning. He doesn't get to say what does and doesn't get planning approval. All you can say if you do apply for PP is that Highways have said they wouldn't have a problem.
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