Planning Permission Condition not adhered to

TangoFiver

My sis bought her house in 2013, and there existed planing permission for a fence to run along the side of the garden.

Said fence is pretty knackered, and as such she is looking to have it replaced.

A condition of the original planning permission (from 2001) stated that "A distance of 4ft 3" shall be provided and thereafter maintained between the pavement edge and the fence".

The fence as it stands does not meet this condition. It's about 3ft from the pavement edge...

A google streetview from 2009 shows it to be the required 4ft 3" but in between then and her buying the house, the fence was re-built closer to the pavement, thus breaching the above condition for planning permission.

So what she's worried about is, if she replaces the knackered fence in it's place, she'd be in breach of this condition, and after spending all that money, amy be forced to remove it.

Having said that, if it's been in it's current place for 5 years, does it need planning permission to replace it? :huh:

I've told her that she'll probably either have to replace it with the conditional distance of 4ft 3", or apply for new planning permission at it's current location (3ft 6" ish distance from pavement) - does that sound right??

She's just a bit concerned that her curent fence is somewhat 'illegal'!

Any help/advice is appreciated

Furts

This sounds like someone has been trying a land grab. If so, the two options are to put the new fence on the correct line or to continue the land grab and hope to get away with it. Clearly the land grab has worked so far so ultimately it may be successful. It is a risk, but really this is a commercial decision. As such there is a risk attached to following this.

If the Planning Authority is contacted be assured the land grab will be brought to a swift conclusion.

After so many years I think the land will become that of the house owner. In essence adverse possession, and not an area I have delved into. This is a legal area... so over to others here.

MisterBaxter

Who do you think may be the owner of the land?
If they haven't shown any interest in the past 5 years they are unlikely to but there are no guarantees. After 12 years undisputed then you can go to Land Registry and seek to claim the land by way of adverse posession; the original owner if known will be contacted but if they haven't shown any interest in the land in that 12 years then Land Registry are unlikely to consider their challenge as being viable.

The issue of land ownership and planning conditions are different but as Furts suggested discussing the matter with the planners could expose the issue to the owner, particularly if it is the Local Authority.

The professional in me says that you should replace in the position that it should be based on ownership and planning requirements but if it were me personally and I hadn't been challenged in 5 years I would probably take the risk and put a new fence in place of the old, take a couple of pictures first to show that it is going back in the same position and if anyone asks you can show you are replacing like for like and based your appeal on that (you may not win).

System

The land may actually belong to the house. As the fence is higher than 1 metre (based on the fact that PP was needed) and adjacent to the highway then that is the reason for the the planning condition.

So no actual 'land grab'

TangoFiver

!!!!!! wrote: »

The land may actually belong to the house. As the fence is higher than 1 metre (based on the fact that PP was needed) and adjacent to the highway then that is the reason for the the planning condition.

So no actual 'land grab'

Correct

Sorry I should have made that clear that she actually owns the land.

Looking at the planning documents from 2001, the reason for the distance between the pavement & fence was "for the avoidance of doubt".

She's not sure what this 'doubt' thing means, and neither do I!

After looking through these documents, I think it has something to do with "complying with County Highways Requirements" :S

Ectophile

If it's highways requirements, then they will be worried that fences right next to the road will block the views at junctions, creating a safety hazard. So they required that garden fences be set back from the road.

MisterBaxter

These sort of things usually come to a head when someone thinks their land is being taken or there is a disgruntled neighbour complaining; neither seems to be applicable in this case.

The authority responsible for highway maintenance will have almost certainly completed a routine H&S inspection on the road and footpath at least once in the past 5 years, if not annually and they clearly haven't raised any concerns.

The planning authority will have archived their file on the property when the original works were complete and the conditions met. Planning authorities simply don't have the resources to go around checking that yeras-old conditions are still being met so if there are no complaints then they are unlikely to pick up on it.

It would seem that the risks of keeping the fence in it's present position are low.

If there were ever to be an accident on the stretch of road it could come to light that the fence had been moved as the condition is there for road safety reasons (usually visability).

TangoFiver

Ectophile wrote: »

If it's highways requirements, then they will be worried that fences right next to the road will block the views at junctions, creating a safety hazardd.

Do you know if there would be any other reasons?

After doing a google-streeview-driveby, it doesn't appear to block views to any junction at all :huh:

The only person the view would be impinging on is my sister when she comes out of her drive, so maybe that was the reason? It's only a quiet cul-de-sac but I suppose in the safety-conscious world it would have to be taken into account...

MisterBaxter

TangoFiver wrote: »

.................After looking through these documents, I think it has something to do with "complying with County Highways Requirements" :S

It could well be that it is just a standard requirement in the area; in practicality it may not even affect the property in question but was just a standard condition imposed on all planning consents. Without asking the planning authority you may never know but it is probably best not to ask.

TangoFiver

So, if she does replace the knackered fence in its current position, and it only affects her, then it's unlikely to attract the notice of planning officials?

And what about if it's been in it's current position for 5 years? When we moved house, our solicitor said that as long as the conservatory was in place for 5 years, it doesn't matter if planning consent exists...

...or would this be irrelevant as her fence has a condition of county highways??

Very confusing, but thank you all for your input!

MisterBaxter

TangoFiver wrote: »

So, if she does replace the knackered fence in its current position, and it only affects her, then it's unlikely to attract the notice of planning officials?

And what about if it's been in it's current position for 5 years? When we moved house, our solicitor said that as long as the conservatory was in place for 5 years, it doesn't matter if planning consent exists...

...or would this be irrelevant as her fence has a condition of county highways??

Very confusing, but thank you all for your input!

This may be of use as it explains the 4 year and 10 year rule. I'm not an expert on planning enforcement but I would have said in this case the 10 year rule would apply as the planning condition had been met initially but has since been changed.

http://www.planningportal.gov.uk/uploads/1app/guidance/guidance_note-lawful_development_certificates.pdf

http://planningguidance.communities.gov.uk/blog/guidance/ensuring-effective-enforcement/planning-enforcement-overview/

[EDIT]
It has gone unnoticed for 5 years so very unlikely that anyone in planning would pick it up now provided the new fence is similar to the old; put a 10ft wall with wrought iron gates and it may attract attention.