Dogs and Greenbelt

This forum is for Garden Law problems that don't fit into the other categories. Please treat it with respect.

Moderator: Angelisle

Post Reply
PawTrax
Posts: 2
Joined: Thu Apr 04, 2019 8:34 pm

Dogs and Greenbelt

Post by PawTrax » Sat Apr 06, 2019 11:30 am

Hi

We have just found our dream house in Dorset. Its a new build so does not have a large garden. As we have 2 Lurchers we really wanted a bigger garden so they can zoom around.

However the developer has also offered some additional land (about 3/4 acre) leading on from the bottom of the garden at no extra cost. This is green belt and currently deemed agricultural (it was an old farm).

Being very cautious we put in a CLOPUD asking the DC if we can fence the land and exercise our 2 dogs on it.

After 8 weeks we have been informed that we can fence it up to 2m but not exercise the dogs as this would require PP for change of use - which would be refused.

I find it hard to believe that we cannot do this. We have no intention of turning into a garden just a place for doggie zoomies in a secure area.

In retrospect maybe we should have just done it. However my OH is very risk averse and does not want to risk a letter from the council.

Any way around this?

pilman
Posts: 2986
Joined: Thu Mar 11, 2010 4:08 pm

Re: Dogs and Greenbelt

Post by pilman » Sat Apr 06, 2019 2:26 pm

Erecting a fence to define the area of land in agricultural use is permitted development under Part 2 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2105.
That is a matter of fact that did not need an application for a Certificate of Lawful Use to have been made.
PART 2
Minor operations
Class A – gates, fences, walls etc

Permitted development
A. The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.


Development not permitted
A.1 Development is not permitted by Class A if—
(a) 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—

(i) for a school, 2 metres above ground level, provided that any part of the gate, fence, wall or means of enclosure which is more than 1 metre above ground level does not create an obstruction to the view of persons using the highway as to be likely to cause danger to such persons;
(ii) in any other case, 1 metre above ground level;

(b) the height of any other gate, fence, wall or means of enclosure erected or constructed would exceed 2 metres above ground level;

(c) the height of any gate, fence, wall or other means of enclosure maintained, improved or altered would, as a result of the development, exceed its former height or the height referred to in paragraph (a) or (b) as the height appropriate to it if erected or constructed, whichever is the greater; or
(d) it would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building.
When an owner of agricultural land takes his dogs for a walk over that land while he looks at how the land is suffering from the recent weather, what change of use of that land takes place?

If there was a small chicken coop in the far corner of the land which meant that each day the land-owner with his dogs has to walk to that far corner to see if the chickens have laid any eggs, or whether the fox has visited in the night, there is definitely no change of use of the land from an agricultural use to any other use class set out in the Town and Country Planning (Use Classes) Order 1987 as amended in recent years.

There is a Use Class D2 which has the heading "D2: Assembly and Leisure" this covers use as a cinema,music and concert halls. Dance and sports halls, swimming baths, skating rinks, gymnasia. Other indoor and outdoor sports and leisure uses, bingo halls.

That highlighted section is the only change of use that could be defined by the Local Planning Authority if dogs were regularly walked over the land that remained in all other ways completely unchanged from its current state.

So all that can happen is that an enforcement notice will be served on the land-owner claiming that there has been a breach of planning control because in the opinion of the LPA there has been a change of use of agricultural land to a use within Class D2 of the Town and Country Planning (Use Classes) Order 1987.

That Notice will give details of what is considered to be the breach of planning control and it would give a date by which the breach should be remedied.

Personally I think there would be little chance of that happening, but if it did there is a right of appeal against the enforcement notice to the Planning Inspectorate.

There is no fee for an appeal, which would consist of completing a form on-line and providing a single page statement claiming that there has been no change of use of the land from its agricultural use.
Having a single chicken kept in a coop is clear evidence of the continuing use as agricultural land. Perhaps a small area set aside for growing vegetable will also be necessary to show a continuation of agricultural use. That allotment can also be fenced off to keep the dogs from getting on that part of the land.
Also if the grass grows too long then all grass cuttings can be offered for sale as composting material using one of the free sites such as Gumtree.
That is also an agricultural use of land when the produce is offered for sale.

That is evidence of continuing agricultural use to show that no change of use has been made.

In the event that the Inspector dealing with an appeal agreed that there had been a change of use (also most unlikely) he would give a new date when the use had to be stopped.

if this land is being offered to you as a free gift by the developer, then I think you would be silly not to take up the offer.

If it were me, and I was a planning consultant so probably know more about the planning system than you do, I would erect the fence and then inform the council that I did not agree that there would be a change of use from agricultural use because I intended to keep a chicken and use part of the land as an area to grow vegetables. If the LPA decided to issue an enforcement notice I would make it clear that I would appeal that notice and rather than agree to written representations as the way to deal with the appeal I would insist that a public enquiry be held to decide the appeal.
This will cost a lot of money for the council to set up such an appeal and it would be quite a deterrent for an LPA thinking it could bully you into doing what it wanted you to do, although the grounds for stating that there would be a change of use is very precarious based on a subjective interpretation of current planning law.

There is no risk once you have decided that you will erect a fence that will have to be costed up as the only downside to using the land in the way you want to use it.

Just so you are fully aware of how planning defined agriculture, this is set out below.
Section 336 of the Town and Country Planning Act 1990 defines ‘agriculture' as including:

‘horticulture, fruit growing, seed growing, dairy farming;
the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land);
the use of land as grazing land, meadow land, osier land, market gardens or nursery grounds; and
the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes.’
Taking dogs for a walk across your meadow land is not a change of use.

PawTrax
Posts: 2
Joined: Thu Apr 04, 2019 8:34 pm

Re: Dogs and Greenbelt

Post by PawTrax » Sat Apr 06, 2019 2:47 pm

Thank you very much for taking the time to reply in such detail.

I just now need to convince the OH that she will not be dragged kicking and screaming to the courts by the planners

Post Reply