Erecting fence on boundary advice

[Toni2710]

Hi

New to the forum, I hope you can advise

We have some land to the right-hand side of our property, which is approximately 24 metres in length. It runs alongside a metalled footpath which is approx 1.8 metres wide.

We want to erect a 2-metre fence which will consist of concrete posts, concrete gravel board and a fully framed close board fence. The purpose of which is to provide enclose the curtilage of our boundary which will provide us privacy, security and to prevent littering.

The fence will be set back approximately 4 to 5 metres away from the road.

Unsure if this complicates matters and may go against us but the neighbour on the other side of the footpath erected a 1 metre picket fence, at the same time they carried out a side extension so within the application they also submitted plans for the picket fence which was approved and is in place. The council make reference to "keeping the grass verges open and green"

Another complication, where our boundary ends, there is a property to the side of it, we spoke to the neighbour stating our intentions to erect a fence, but they have objected stating several reasons such as, blocking their view, restricting their access to sunlight, etc, in a nutshell they do not want us to erect the fence full stop.

I contacted the council to determine whether our PD rights are intact, had to pay a fee and received the following response..

"No development, including any development permitted by the Town and Country Planning ( General Development) Order 1963 (other than the erection of a fence or footpath) shall be carried out"

I understand each case is assessed on its own merits and is a matter of 'fact and degree' and the council would prefer that the area is kept "open and green in line with the character of the area"

- Is a public footpath classed as a "highway" even though it is not used by vehicles?


- It appears there is also no clear interpretation as to what the council deem as adjacent to a highway!?

We do not want to throw money away, in light of the above, what is the likelihood of the application being approved if we were to apply for a lawful development certificate?

I'm struggling to find my way through the planning portal it's our first time!, and not sure what options to select, could anyone kindly provide me a steer?

What the fee would be for such an application?

Look forward to hearing from you

[dslippy]

If this is a newish estate check alos whether there are retrictive covenants against erection of such a fence. What you describe is prime for such covenants.

The footpath is likely to be a highway. Is the footpath not the road? You are unclear.

[Toni2710]

dslippy thank you for your response, it is not a new estate.

No, the footpath is not a road, I've attached a birds eye view of the area and marked a red line where the fence will be erected

[ostell]

You can only ask. Our council forced one landowner to cut down his new 2 meter fence that was next to the the road but they have just approved a 2 metre fence, even closer to the road, on the next property. Terrible

[Toni2710]

Amethyst des8 I've seen some of your past posts regarding fencing adjacent to a highway, would appreciate your thoughts

[des8]

Generally a public footpath is a Highway whether or not there is a road adjacent, so permitted development would only allow a one metre high fence.

You could visit your local council planning dept and ask them off the record if they thought your plans would receive approval.
That might save you paying for a failed application.

An alternative plan might be to plant a hedge, then when it is high enough erect your two metre high fence behind it.
This is not to hide the fence, but to place it out of reach of people on the path.
The reason for this is that the regulations are all about "adjacent to the highway" but do not define "adjacent".

There has been at least one case where a 2m fence was deemed not to be adjacent because there was a flower bed or similar between the path and fence and so the fence could not be touched by a person on the path without entering the privately owned land
It means the fence would have to be at least a metre back from the path

However there have been cases where an opposite view prevailed.
here is an example where it was ruled that altho' the fence was screened by a hedge it was still visible and acted as the boundary feature as it was not a sufficient barrier (https://planningjungle.com/wp-conten...ion-Notice.pdf)

The answer (if you have the room and time for clipping twice a year) might be to grow a dense hedge, and when it has reached a reasonable height take stock and decide if a fence is still necessary

[Toni2710]

des8 the council have not been helpful at all and were not in a position to advise me.

To clarify is a footpath still classed as a highway even though it is not used by vehicles?

Shedule 2, Part 2 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 which defines what permission is granted that allows fences to be erected.
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.




In my case a public footpath is not a highway used by vehicular traffic.

If I've understood correctly this would mean that a fence with a maximum height of 2 metres can be erected on my land even if it is next to a public footpath?

The GPDO grants planning permission for a 2m tall fence adjacent to a highway UNLESS said highway is used by motor vehicles - where it must be 1m tall instead.

Would you agree?

[Toni2710]

des8 also found this post
https://legalbeagles.info/forums/for...-highway-rules


If the fence is going to be 4 to 5 metres away from the road and pavement is it still not acceptable for me to build a 2m fence alongside my boundary?

[des8]

a footpath is a highway, but as you have pointed out the permitted development is not permitted if the highway is used by vehicular traffic.
I doubt that footpath is used by 4x4s

Where the proposed fence wraps around to the front of the house it seems to be far enough from the road not to obstruct drivers view

So yes I would agree with your interpretation, and thank you for the direction.


Overnight thought... why not apply for certificate of lawful permitted development?
I see the probable cost in England has now risen to c£100 (used to be £25 in Wales!) but it will let you know if your proposed fencing is going to give you grief before you start spending.

[Toni2710]

des8 yep 100% the footpath is not used by vehicles whatsoever!

Yep was thinking of applying for a LDC but given the points I raised in my initial post regarding the neighbour objecting and the council preference to keep the area open and green, the neighbour next door on the other side of the footpath erecting a 1m picket fence I feel it may go against me
Is it £100 for a LDC? I wasn't sure what category to select, it's the first time I've been on the planning portal so unsure of some of the questions, any help/guidance would be appreciated

[dslippy]

Again, this need not just be about planning. This appears to be an estate with open plan frontages. It would be common to have restrictive covenants preventing the erection of fences. Whilst the planning department might not be bothered, your neighbours may be able to enforce a covenant direct against you.
Please check first.

[des8]

First check the point raised by dslippy
If there are no such covenants it would be cheaper for you to pay the fee for a LDC and have it rejected than to erect a fence and then have to remove it!

I doubt your neighour's objections have much force as there is no entitlement to a view and I doubt it will actually reduce the amonut of light to any extent

Your council will confirm the current cost of an application for a LDC

[Toni2710]

dslippy at the time when we purchased the property we asked the solicitor who confirmed that there are no restricted covenants in place.

I also contacted the council to determine whether our PD rights are intact, had to pay a fee and received the following response..
"No development, including any development permitted by the Town and Country Planning ( General Development) Order 1963 (other than the erection of a fence or footpath) shall be carried out"

[des8]

I wonder why they referenced the 1963 Order, it isn't even available on the government website!
However you can access it here :https://vlex.co.uk/vid/town-and-coun...ning-812288185

The whole system is labyrinthine as shown here: https://planningjungle.com/household...ial-documents/

[Toni2710]

It's been a while, we decided to submit an application for a lawful development certificate proposed use to erect a 2m fence along the boundary line of our property. I'm disappointed to say the least but the council are stating I can only erect a 1m fence on my land which I own [IMG]https://legalbeagles.info/forums/image/gif;******,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7[/IMG]




Is it worth pursuing this further to challenge their decision and appeal? or do I concede and accept? I would appreciate your advice




Council response below:....




unfortunately I do not believe your proposal would accord with the relevant class under the General Permitted Development Order (GPDO). Part 2 Class A of the GPDO permits the erection of fences, subject to accordance with guidelines outlined in paragraph A.1. Part a states:







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;




From assessment of your proposal, the footpath which runs between no.51 and no.53 is an adopted highway and therefore the height of your fence should not exceed 1 metre. Footpaths are still classified as highways. Furthermore, it is important to recognise the use of the land as landscaped amenity land which is important in retaining the open character of this footpath. On this basis, the erection of any fence in this location should ensure that the use of this land is amenity land and not private garden, otherwise a change of use application would be required. This would also be unlikely to be supported due to the importance of this land in the character of the streetscene.







In short, we could accept a fence similar to that at no.51, as this would be lawful under this application. However, enclosure of this land should not result in a change of use of the land. I would therefore recommend that you amend your proposal if you wish to proceed with it to accord with the GPDO. If you have any questions about the information above please do let me know.




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I responded back stating that the GDPO, there is no reference to an "adopted highway" instead it refers to "a highway used by vehicular traffic".




Also, the land is not amenity land, it is part of my private garden, and provided title plan, the council responded as below:




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A highway used by vehicular traffic does not limit itself to motorised vehicles, nor should it be open to all forms of vehicles. As this footpath is open to pedestrians and cyclists it would still fall within the definition of ‘A highway used by vehicular traffic’. The proposal therefore does not accord with Paragraph A.1. I have attached an appeal decision which outlined this matter in further detail.




With regards to the issue of private garden, whilst I do accept it is within your title deeds in planning terms it is still landscaped amenity space which contributes to the open character of the footpath. It is not private garden space. With this in mind, any fence erected, should still maintain the open character of the area, a 1m fence would do this as I suggested in my previous email.




The fence at no.51 was considered to be acceptable as it restricted access to their land without reducing the open nature of this path. This is something which would be permitted along the border of your land, however, a 2m fence would impact upon this openness.




Therefore, as I stated in my previous email, I suggest you revise your proposal to accord with the relevant class under the GPDO.




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In the second response the council cited this previous application in Milton Keynes for rejecting the application which refers to redways and also the MK example the fence would be setback 0.6m from the highway whereas our proposed 2m fence will be setback over 6m from the road!




Also to note I found out that although the MK lawful development application was refused the owners submitted a full planning application which was approved!


Links below


https://publicaccess2.milton-keynes....iveTab=summary


https://publicaccess2.milton-keynes....iveTab=summary