Fence, Enforcement Complaint, Planning Application or not?

Fence, Enforcement Complaint, Planning Application or not?

Postby scattycat64 » Sun Mar 05, 2017 7:48 pm

Thank you for welcoming me to the forum and its so interesting reading the other posts and the variety of experience and advice in one place.

Long story as these always tend to be, so I'll try and make it much shorter.
Jan 2016 my neightbour and myself had the trees (hawthorn, blackthorn etc) to the rear of our properties pruned and the heights reduced as they had never been properly maintained in 15 years. The tree maintenance men advised that most of the tress were rotten at the bases and it was only the ivy that was holding them up. My neighbour agreed for most of theirs apart from one large tree to be removed. I was reluctant to remove them as it gave the wild life and birds cover and also me privacy from the houses behind on the opposite side of the road. I opted for the trees behind mine to be reduced in height, pruned back and the ivy left to support them.
March 2016 I arranged for the rear fence on the three sides of my property to be replaced (same height 2m) and extended by 2.38m to nearer the boundary. The builder queried the safety of the tree structure and so reluctantly I agreed to remove them but that they could be replanted like for like outside the fence line.
The ground level of the road side is 40cm lower than the garden level. The builder had to build a retaining structure to ensure the stability of the garden level.

Within a few weeks of the featherboard fence being finished (apart from a 1m section which has a fence panel for security and to allow for access to the garden for lanscaping materials), 14th April 2016 I received a visit from an enforcement officer advising they had received a complaint regarding the erection of a new fenced and following that a letter with the following:

"14th Apr 2016 to say that they had received a complaint regarding the erection of a new fence. He took photos and measurements and wrote to me to advise:
"Thank you for showing me the fence at your property yesterday I just want to update you on the situation.
• You have recently constructed a new fence on land to the rear of your property, whilst outside of the existing fence line you believe the fence is within the area of land show on the title deeds.
• The height of the existing fence has been continued out ward, due to the land falling away to the rear of the property the new fence has a height of 2.2m from the ground.
Schedule 2 Part 2 of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2015 provides permitted development rights relating to gates fences and walls.
Development is not permitted if the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, exceed 1 metre above ground level.
The fence that you have constructed measures 2.2m from the ground level on xxxxxx Way and thus requires planning permission. In order to seek to regularise this breach in planning I recommend you submit a planning application to the Council within 28 days of this letter. Alternatively I recommend that you return the fence to the original position or lower the height of the fence to 1m within the same time frame. "


It took me a while to draw the fence plans to scale and submit, which took to just before Christmas 2016. At the same time I was advised the person looking after my planning case had changed. I received a response advising that the planning date was 16.01.17. I heard nothing and so after this date I contacted the officer and received the following response:-

"Thank you for your email. Please accept my apologies for the delay in providing you with an update as to this application, however I have been out of the office for approximately three weeks due to unforeseen circumstances.
With regards to planning application xx/xxxx/FUL, unfortunately I must advise that I shall be recommending refusal on the basis that the development is considered to harm the character and appearance of the surrounding area by reason of its design and positioning and is also considered to have an adverse impact on (pre)existing trees / hedgerow important for wildlife and amenity. Saved Local Plan Policy D.2 states that development will only be permitted if, amongst other things, the character of the public realm is maintained or enhanced and that the development is of a high quality. Saved Policy D.4 also states that development will only be permitted where, amongst other things, it responds to the local context in terms of appearance, materials, siting, spacing and layout and the appearance of extensions respect and complement their host building. Furthermore, saved policy NE.4 states that development will only be permitted where it does not have an adverse impact on trees and woodlands of wildlife, landscape, historic, amenity, productive or cultural value. The aforementioned Local Plan policies are also supported by paragraph 58 of the National Planning policy Framework (NPPF) and emerging Placemaking Plan policies D.1, D.2 and NE6.
In addition to the reason given for refusal, I must advise that there also appears to be an issue as to the ownership of the land which may render the application invalid. It appears that an area of the land incorporating the development is currently owned by xxxxxxxx, as verified by a land registry search. The applicant would therefore be required to sign a Certificate B (not Certificate A as submitted).
In light of the above, I would be grateful if you could agree to an extension of time until 27 February so as to be able to advise as to your client’s preferred course of action (i.e. for acceptance of a refusal or withdrawal of the application). Please do not hesitate to contact me if you have any questions regarding the above. "


I asked about what options I had...
"Thank you for your email which was received today. I have now formalised the extension of time until the 27th February and so please be assured that there is no pressing deadline for you to discuss and consider the options available with regards to my recommendation.

In answer to your first query, essentially I must advise that if an application has been recommended for refusal (which is the case in this instance) the applicant has two options. The first option is that they may either confirm in writing/via email to the officer that they wish to formally withdraw the application, whereby the application will be withdrawn and no decision issued. Please however be advised that as the development was the subject of an enforcement complaint and investigation the matter will revert back to the enforcement officer for further action/consideration. The second option would be to accept the officers decision to refuse the application and thereby retain an opportunity to submit an appeal to this decision (information as to how to submit an appeal is included in the Decision Notice issued to you).

A useful website to consult for further information and guidance surrounding planning matters isxxxxxx However, if you remain unsure as to your options (for example, the appeals process) is it advisable that you seek the advice of a professional planning agent.

As previously advised, application 16/02895/FUL is to be recommended for refusal on the basis that the development is considered to harm the character and appearance of the surrounding area by reason of its design and positioning and is also considered to have an adverse impact on trees / hedgerow important for wildlife and amenity. The erection of the fence has resulted in the partial loss of an existing hedgerow and trees and as such the development has had an adverse impact upon local landscape amenity and character. Whilst replacement planting has been suggested in order to mitigate this impact, unfortunately it is not considered that this action would be appropriate due to the limited space now available between the erected fence and public pavement. In addition, the development fails to respond to local context by being incongruent with surrounding neighbouring fences and boundary treatments. Most fences situated on the surrounding estate, including those located immediately adjacent to the property, are set back from the public path and road behind existing mature hedgerow and trees (the attached plan illustrates the treatment of boundaries as part of the development known as The Tyning and the retention of landscape features which would have been used to ‘soften’ the appearance of the new estate and add to landscape amenity). For these reasons, the development is considered contrary to saved Local Plan policies D.2 and D.4 and NE.4; emerging Placemaking Plan policies D.1, D.2 and NE6; and paragraph 58 of the National Planning policy Framework (NPPF).

The attached Land Registry plan illustrates the legal boundary and ownership of property 33 Laxton Way (Title ST191597). The adjacent land, situated between title ST191597 and the public path and road, where the fence has been erected, is registered under a separate title number (ST159207) which states that the legal proprietor is Beazer Homes Limited. Therefore, the drawing included with the titles deeds of the property and attached to your previous emails does not equate with the legal title register which the Council would rely upon to demonstrate legal ownership. The signing of Certificate A in relation to this application was therefore inappropriate as you do not appear to be the legal owner of the land on which the development is currently situated.

I hope that the above has assisted with clarifying the current position. However, if you wish to discuss these matters in further details please do not hesitate to contact me by email or phone."


I spoke to the plannning officer and advised that I had contacted the developers and that they had confirmed that I was not encroaching on their land.
We discussed possible options and the planning officer said there may be a compromise if I moved the fenceline back by 1.5m and planted a replacement hedge in the space provided. She does not consider that 70cm is sufficient enough to plant and maintain a hedge, without it engressing onto the footpath.
I have until 6th March to advise if I will be leaving the planning application in to be refused, or withdrawing it for the enforcement to then decide.
She also said that if mine was passed then this would set a precedence for all the houses (6) along the same side to follow my lead and then it would be a very unsightly and not green area.

What should I do?
1. Leave the application in place to be refused and reverted back to enforcement. Then make an appeal if necessary?
2. Withdraw the application and await enforcements decision. Then make an appeal if necessary?

Does either of option 1 or 2 have a further cost to appeal?

I have tried to attach some images on a word doc but they won't upload of the road to the rear of my property and another property that was built in the last 5 years. The fence is nearer to the footpath than mine has had the original nedge removed for building and a laurel hedge planeted in the space between the footpath and fence.
hen building. Surely this has already set a precedence to a change in the surrounding landscape?

My other ideas if I lose this and an appeal and am forced to reduce the height of the fence to 1m, is to make the fence into a shed? No planning required? Have a garden studio built the whole width of the garden to give provacy and security to the rear of my property (permitted development sized), but rather an expensive alternative or keep appealing if this is an option?

Oh and by the way my application online shows an email from the Parich council who were happy with the change on the proviso that the hedge was replanted with same, the fence panel was removed and the featherboard fence finished and that the hedge was maintained. All of which I said originally would happen.

Many thanks in advance.
scattycat64
 
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby mr sheen » Sun Mar 05, 2017 8:37 pm

The LA have determined that your development causes issues for wildlife and local amenity, contravenes planning under certain sections of legislation since it does not comply with PD rights, has damaged hedgerows and the ownership of the land is disputed.

Imagine the devastation to wildlife, conservation and amenity if every land owner decided to take out hedgerows housing wildlife and left deliberately for conservation purposes, in order to gain a few feet of extra garden for themselves.

Perhaps you could consider listening to the advice of the LA and returning the area to its original amenity land and housing for wildlife rather than expending energy on seeking ways to fight the LA, community and wildlife for personal gain.
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby scattycat64 » Sun Mar 05, 2017 9:29 pm

Thank you for your reply Mr sheen.
My response:-

I did not remove the trees to gain a few extra feet of garden for myself. I paid (twice in effect) initially for the trees to be pruned and the height reduced in order to maintain them as no one else had bothered to, not even the LA when requested by residents. I paid again after the fence had been erected (with the trees still in situ) after seeking advice from an arborist (after the builder had advised the trees we rotten) that the stability of them was a potential safety risk to pedestrians. Just last week in the high winds one of the trees behind a neighbours property split at the base and fell into the road in the high winds!
I tried unsuccessfully to keep the original trees as I am a lover of wildlife and member of many wildlife protection groups, so I find your harsh tone deeply upsetting and offensive.

Why should I have land belonging to my property outside of a structure that preserves the area belonging to the property? You'll be telling me to open my house to homeless people next!

If my development causes issues for wildlife and local amenity, why then did the local LA pass plans for a house including a boundary in line with mine but 4x the length of mine and that has NOT planted a native hedge but a 1ft laurel hedge. I can't see any wildlife benefitting from this development. In my plans I have the costs for a replacement healthy already established native hedge made up of hawthorn, blackthron, wild cherry, field maple, dog rose and hazel, I have researched in detail one that has the same native species, 'instant' 1.8m high, 7 years old, healthy. Not cheap but worth the cost to ensure the wildlife and birds have a habitat that can be properley maintained on going. This would have been in place just a week after the original had been removed (I checked it could be planted at that time of year), however this has been delayed through the complaint and subsequent planning application having taken 7 months!

The ownership of the land is not disputed. Only a small piece (ransome strip) was queried because the LA couldnt read a title document. Which if you had read all my post you would have seen I had confirmed with the developers, who own the small strip of land between my boundary and the footpath.

I thought this forum was for sharing information, not rebuke or blame or offensive communication. I would also like to quote you from a recent post reply "You have the right to use every inch of your own land that you have paid your hard earned cash for, above and below ground, exactly as you wish ......"
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby mr sheen » Mon Mar 06, 2017 8:21 am

When you bought the property, it was fenced and that fence identified the boundary of the land being transferred to you for your use. Anything outside that fence is likely to belong to someone else or have been designated as amenity land/highway etc etc and not for your personal use. This is a common practice in order to preserve wildlife habitats etc.

You chose to seek to extend your useable land by moving the fence 2.38m into land that had been allocated for something else.

You can continue to seek ways to dodge the enforcement by the LA or accept graciously their advice for the greater good and work with them for an amicable solution.
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby MacadamB53 » Mon Mar 06, 2017 8:51 am

Hi scattycat64,

the ONLY reason you're having to seek planning permission is because your fence is 2.2m tall.

the simplest, cheapest, and least stressful solution would be to reduce the height of the fence.

why that should be to 1m - as the LA advise - rather than 2m needs to be understood.

Kind regards, Mac
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby scattycat64 » Mon Mar 06, 2017 10:35 am

Mr Sheen.

Ypu are quite wrong. The title boundary is past the fence line and quite clearly shown on the plans and the title when the house was first purchased and when I purchased it . If I could post the title plan for you, you would see this and apologise for your negative behaviour. The land is not amenity land or any other land, it belongs to the houses and shows on all 6 properties title numbers.

I refer you again to your respone in a recent post ......... "You have the right to use every inch of your own land that you have paid your hard earned cash for, above and below ground, exactly as you wish ......"
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby scattycat64 » Mon Mar 06, 2017 10:39 am

Thank you MacadamB53 for your reply, which is much appreciated.

I will speak further with the LA and see if there is a compromise to my situation. I really want to get the hedge planted as its been far too long missing for the wildlife and birds. If the only problem is the height then I can discuss this with them and seek an alternative.

kind regards
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby arborlad » Mon Mar 06, 2017 11:33 am

scattycat64 wrote:Why should I have land belonging to my property outside of a structure that preserves the area belonging to the property?




The law presumes you will fence to the fullest extent of your land, whenever this doesn't happen it creates problems and you would need a good reason for not doing so. In circumstances similar to yours, one of the reasons could be the land occupied by the trees/hedge was designated at the planning stage as amenity land and was to remain as such - this would be documented somewhere. Another reason could be whoever erected the first fence took the path of least resistance!

The height of your fence is not the only factor that needs consideration, reducing the height of the fence may not be the easiest of solutions, critically, where is the centre rail and how is it fixed?
arborlad

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Re: Fence, Enforcement Complaint, Planning Application or no

Postby scattycat64 » Mon Mar 06, 2017 1:01 pm

Thank you MacadamB53 and Arborlad

I have spoken with planning this morning and received an email as confirmation that I can move the face of the fence back to the other side of the posts and use the 'airgap' currently insitu to reposistion the fence and allow space for me to replant a native hedge. This is approx 0.5m and will help as I will not need to move the posts and so not incurr too much added cost.
So all seems well and thank you for you help. Your respectful advice and opinions definately helped me to look into a compromise in more detail and suggest to planning, which I am pleased to say they seem to think will work.

Thanks again
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby arborlad » Tue Mar 07, 2017 5:49 pm

scattycat64 wrote:Thank you MacadamB53 and Arborlad

I have spoken with planning this morning and received an email as confirmation that I can move the face of the fence back to the other side of the posts and use the 'airgap' currently insitu to reposistion the fence and allow space for me to replant a native hedge. This is approx 0.5m and will help as I will not need to move the posts and so not incurr too much added cost.
So all seems well and thank you for you help. Your respectful advice and opinions definately helped me to look into a compromise in more detail and suggest to planning, which I am pleased to say they seem to think will work.

Thanks again




You seem to have unusually thick posts and rails if you can reconfigure them to gain .5m.

Have you thought about using whips for the hedging?.........lots of advantages over planting larger stock.
arborlad

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Re: Fence, Enforcement Complaint, Planning Application or no

Postby scattycat64 » Wed Mar 08, 2017 2:55 pm

You're absolutely right arborlad. I have since been out and measured the posts, airgap and reconfiguration and it is much less than I thought, approx .39m. This includes the fence depth, cross bar, post, retaining boards on both sides. I have sent this to the planning department and am awaiting their response. I did say I wasn't sure of the actual measurements when I spoke to them, but that it may give a further .50m approx. Bit out on my estimations!
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Re: Fence, Enforcement Complaint, Planning Application or no

Postby arborlad » Thu Mar 09, 2017 2:00 pm

scattycat64 wrote:You're absolutely right arborlad. I have since been out and measured the posts, airgap and reconfiguration and it is much less than I thought, approx .39m. This includes the fence depth, cross bar, post, retaining boards on both sides. I have sent this to the planning department and am awaiting their response. I did say I wasn't sure of the actual measurements when I spoke to them, but that it may give a further .50m approx. Bit out on my estimations!




You've shown a willingness to compromise and make changes, which I think, will stand you in good stead.

If the odd 100mm becomes an issue, it is easily obtained by spacers or dummy posts.
arborlad

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