Newbuild Land Dispute Planning Enforcement

Section62

newbuildnightmare said:

Hi the builders solicitor said we didn't need it as it was within our domestic curtilage and it was a continuation of exactly the same fence and dimensions which you can't see out of picture that also runs along the path edge

Unfortunately, if you didn't need planning consent, then that^ isn't the reason why.

Can you confirm, is the shed where the blue rectangle is in this picture, and is the tall fence behind the shed running along the pink line?  And is the road being adopted by the council?

MeteredOut

Section62 said:

newbuildnightmare said:

Hi the builders solicitor said we didn't need it as it was within our domestic curtilage and it was a continuation of exactly the same fence and dimensions which you can't see out of picture that also runs along the path edge

Unfortunately, if you didn't need planning consent, then that^ isn't the reason why.

Can you confirm, is the shed where the blue rectangle is in this picture, and is the tall fence behind the shed running along the pink line?  And is the road being adopted by the council?

I'm trying to get an overall picture in my head too. Based on the response to my email about the fence, and confirmation its not been raised at that point nearest in the photo, i believe the shed and fence at the far end, not the end in the photo.

EDIT: Although looking back at the photos and the plans, and where the other houses and roads are, I can't make that tie up. OP, can you clarify please?

Section62

MeteredOut said:

Section62 said:

I'm trying to get an overall picture in my head too. Based on the response to my email about the fence, and confirmation its not been raised at that point nearest in the photo, i believe the shed and fence at the far end, not the end in the photo.

EDIT: Although looking back at the photos and the plans, and where the other houses and roads are, I can't make that tie up. OP, can you clarify please?

Yes, I can't match what the OP said to the pictures - behind the tall fence behind the shed you can clearly see a car.  If that were the far end the car would surely be in the long swale, not on a road or parking area.  The shorter swale also appears to have an inlet/outlet pipe in the far end, there's no sign of that in the end where the shed is.

MeteredOut

Section62 said:

newbuildnightmare said:

Hi the builders solicitor said we didn't need it as it was within our domestic curtilage and it was a continuation of exactly the same fence and dimensions which you can't see out of picture that also runs along the path edge

Unfortunately, if you didn't need planning consent, then that^ isn't the reason why.

Can you confirm, is the shed where the blue rectangle is in this picture, and is the tall fence behind the shed running along the pink line?  And is the road being adopted by the council?

Looking in a bit more detail, I think your right (and that was my first impression too) that the fence in the photo above has been replaced. I suspect the reason the dog-leg piece of the fence was lower when built was as a visual splay for vehicles on the road and where the white van is parked.

OP, just because a solicitor said something was allowed does not mean it would pass planning. I suspect you will have to submit retrospective planning for the changes you've made.

newbuildnightmare

The Purple line you have added is the line of the replacement fence which is 6ft high and joins onto an identical 6ft fence out of picture.  The Blue box is the location of the shed.Both of these additions were confirmed as ok to proceed with by the builders solicitor prior to purchase of the house.  Neither interfere with the performance of the swale.  Planning don't specifically mention or care about the them they only refer to that we have changed the use of land.  What I have asked for repeatedly from planning is what do they currently classify the land as and then won't give me the answer they just repeat public open space.
I'm reluctant to apply for planning permission change of use of land as that indicates that I accept that the land is public open space.  I suppose the important question if you know the answer is, How do i formally lodge a disagreement with the planning dept regarding a classification of land.  Is the burden of proof on the planning department to prove what the land is legally classified as rather than me being fobbed off with the standard public open space response?

newbuildnightmare

I can't find what they classify this part of land as on any planning doc anywhere on the portal.

newbuildnightmare

anselld said:

In the first instance appeal against the enforcement notice to the planning inspectorate submitting all the details you have mentioned above as evidence.

Have you looked at the approved planning documents from when the estate was built to see how the disputed land is designated?

I cannot find any doc on the portal that states what category the disputed land is.  How would I find this out if it isn't on any documents. Does the planning department HAVE to tell me or is there a formal way of requesting the information?

daveyjp

I'd stop looking for evidence and continue to ask the council which documents they are relying on to undertake enforcement, because without them you are none the wiser.

Ask them to provide you a copy or link to the documents on the planning portal so you can take advice.

BTW there was enough info on the plans for me to find the application.  A quick look at one of the documents states the surface water SUDS is to be maintained by property owners, but also suggests a manangement company is involved to ensure shared private drainage is maintained adequately. In their response to the proposal the water company had no objections to this solution and nothing in the decision notice goes against this.

I note the application was dealt with during covid and someone at the Council may have dropped the ball due to the turmoil at the time in trying to deliver their service.

newbuildnightmare

@daveyjp
Thank you for that, there is definitely no management company setup and the builder says there will not be one. Understood ref covid thank you.

Section62

newbuildnightmare said:

The Purple line you have added is the line of the replacement fence which is 6ft high and joins onto an identical 6ft fence out of picture.  The Blue box is the location of the shed.Both of these additions were confirmed as ok to proceed with by the builders solicitor prior to purchase of the house.  Neither interfere with the performance of the swale.

Unfortunately the builder's solicitor can only reliably advise you on what the builder wants and agrees to.  Planning is separate and on the assumption the road is 'highway' then the 6ft fence would need planning consent whether or not the land is open space.  The only complaint I could see in terms of performance is the fence and shed make it difficult for others to keep an eye on whether the swale is working Ok, and for maintenance.

The low rail fence was typical of those used by councils and developers to enclose public spaces to keep vehicles out, so in terms of 'character' I can see the council arguing that by appearance the swale at the side was 'public'.

The colour plan you posted, which I'm guessing is the landscape plan from the planning consent, does suggest a difference between your garden (enclosed by the blue line) and the swale, as different colour fills have been used.  I think the council might use that to argue the curtilage of your property (for planning purposes) is the blue line.

But the swale at the side of your house is shown with a different colour fill to the long one at the back, the later having similar colouring to the grassed area on the opposite side of the road.  The fill colour on the swale at the side of your property is also similar to the areas either side of the access road, and some of the gaps between parking spaces in front of plots 3 through to 7.

You need to look at the key for that plan to work out what the colours mean (and also find out who is responsible for the grassed area opposite).

newbuildnightmare said:

Planning don't specifically mention or care about the them they only refer to that we have changed the use of land.  What I have asked for repeatedly from planning is what do they currently classify the land as and then won't give me the answer they just repeat public open space.

I suspect they may be taking a two stage approach - first showing you've enclosed a 'public space', and then later on dealing with the buildings on that space.  From their point of view, the argument against you having a high fence around the land and treating it as your garden is that you could then start 'developing it'.  The shed and greenhouse currently act as proof of 'intent', that not only do you want to enclose the space, you want to build on it as well.

As daveyjp points out, the high fence along the frontage impacts on the sight line for the plots either side using their parking areas.  If you applied for consent to put this fence up I would expect the council to turn it down on road safety grounds.

newbuildnightmare said:

I'm reluctant to apply for planning permission change of use of land as that indicates that I accept that the land is public open space.  I suppose the important question if you know the answer is, How do i formally lodge a disagreement with the planning dept regarding a classification of land.  Is the burden of proof on the planning department to prove what the land is legally classified as rather than me being fobbed off with the standard public open space response?

Unfortunately it really comes down you demonstrating this land should be part of your garden and not open space - the key for the plan might help you with this, or maybe not.

The only formal process I can think of would be you appealing against an enforcement notice if the council assert the land is open space and you are using it as garden and go ahead with issuing an enforcement notice.

Have you checked the original planning application form?  These usually have boxes to fill in giving total areas of different land use types (not necessarily all of them).  If the final layout plan is the same as the original application then you could use the figures from the application form to work out if the areas are approximately right for what you think they should be.