The General Permitted Development Order Part - 2 Q & A DCP Section 4.34

This section deals with the interpretation of the principal provisions of the Statutory Instrument entitled Town and Country Planning (General Permitted Development) Order 1995 - as amended. It also covers the equivalent legislation in Scotland and Wales, both under review at the time of writing. However, information and commentary on the GPDO will concentrate on the English Order, to which radical and controversial changes to Part 1 were made in 2008.

Q & A    4.34/10

Part 2    4.34/108

My council is currently considering the issue of an enforcement notice to secure the removal of a wall and gateposts.1.5 metres high.  The wall is adjacent to a private metalled road servicing over a dozen properties. The council's solicitors are uneasy about issuing the notice as they consider that the roadway may not be a "highway".

The issue here is that if the roadway is not a "highway", a wall of up to 2 metres in height is permitted development. As noted in my reply to a question published on 10 November 2000, a "highway" is not defined in the GPDO and at appeal many inspectors have taken the view that a "highway" may be a private road so long as it is one over which the public has a right to pass and repass.

The demolition of a wall fronting a highway in a conservation area does not require conservation area consent if less than one metre in height. The wall in question measures 1.45 metres on the highway side but only 0.70 metres on the garden side. I understand that for the purposes of the GPDO the height is taken from the higher of the two levels, but is it reasonable to apply this interpretation to cases involving demolition?

The GPDO generously states at Article 1(3) that, when measuring height in the case of no uniform level of land, the higher level is to be taken. However, this definition only applies to buildings and plant, and not to walls. At appeal, as per the advice in Circular 9/95 paragraph 36, inspectors have tended to seek to establish the natural ground level at the time the wall or fence was erected and take the height measurement from there. So far as I can ascertain there have been no cases to determine a basis for measurement of wall or fence height using the 1997 Direction relating to demolition in conservation areas.

An existing fence of 1.5 metres, adjacent to a highway, was removed and replaced with a fence of similar height. The GPDO at Part 2 Class A provides that a fence which has been "maintained, improved or altered" may be re-erected to its former height but does not refer to the "construction" of a fence.  Does the GPDO allow a complete replacement fence, or would planning permission be required?

In my opinion the complete replacement of an existing wall or fence, albeit very similar to that which existed before, does not fall within the definition of "maintained, improved or altered", and therefore it is a fresh development. Accordingly, in your case the new fence would require permission being over the one metre permitted by Part 2 Class A.

Response

Are you are aware of any cases where this situation has been debated? An LDC case determined last year (DCS No: 35308549) saw an inspector rule that the replacement of a post and wire fence by a close boarded fence was not permitted development. It was reasoned that as it would be necessary to remove the existing fence completely a new structure was being created which being over 1m in height did not fall to be permitted development. Another case  from 1999 (DCS No: 53139903) showed that the partial replacement of a wall or fence  may not be considered to be an alteration. Here an existing low stone wall had been topped by a fence and trellis which was later removed and replaced by rendered concrete blockwork.. here an inspector felt that as the original stone wall was only one third of the height of the current wall, and the replacement material was different, this went beyond that which could reasonably be taken as an alteration.

My client historically had a 2m high wall topped by a 1m trellis adjacent to the highway. He has replaced the trellis with a more substantial structure for security and privacy reasons. It is accepted that these works were not permitted by Part 2 Class A of the General Permitted Development Order (GPDO), but could the wall itself be retained? Alternatively, may it be argued that the wall is permitted up to 3 metres in height by reason of Part 1 Class E?

Part 2 of the GPDO only allows a new boundary fence or wall of up to 1 metre where adjacent to a highway. However, in cases where an existing higher wall or fence has been altered, or even rebuilt to similar dimensions and position, using the same materials, it may be argued that no fresh act of development has occurred. In your client's case it seems clear that changes to the top part of the enclosure have gone beyond this, and could be the subject of successful enforcement action. While it may be technically possible for an enforcement notice to seek the removal of the whole structure, if the original base wall remains unaltered and distinguishable such a requirement is likely to be held unreasonable at appeal.
As to the other question you ask, Part 1 Class E of the GPDO allows as permitted development "any building or enclosure" within the curtilage of a dwellinghouse and incidental to its enjoyment. It is normally accepted that a boundary wall or fence would not comply with the latter criterion. A screen wall around a swimming pool or a fence around a tennis court would typically be enclosures allowed by Class E as there is a clear nexus with an "incidental" activity. GH

A new concrete block garden wall has been erected by my neighbour on her land with the face on the boundary line between our properties.  The floor level of my property is approximately 600mm lower than that of next door. She has told me that she was advised by the local council that she is entitled to construct a garden wall up to 2m high without consent which she has done taking the datum as her house DPC.  On my side of the wall the top is 2.6m above my house DPC and 2.7m to ground level at its lowest point. I would appreciate your comments.

I do not think that floor levels are likely to be relevant for the purpose of the calculation of the height limits for walls and fences at set out in Part 2 of the General Permitted Development Order 1995 (GPDO).  Although there is no indication in the Order as to how the height of walls and fences is to be measured, appeal inspectors have normally taken the view that the natural ground level at the point where the wall or fence is constructed is to be taken as the datum. Therefore where walls or fences are to be built across a slope, a median has to be established taking into account ground that may subsequently have been made up or taken away. Applying this criterion to your case it may well be that your neighbour's wall is too high to be permitted development.

Is a two foot gap between a 2m high fence/gate and the back of the public footpath sufficient to be held not to be "adjacent" to the public highway?

The point here is that if not deemed to be "adjacent" to a public highway this fence would be permitted development by virtue of Part 2 of the General Permitted Development Order 1995. This question has arisen at appeal several times and Development Control Practice at (12.31) contains a number of relevant case summaries. The thrust of these decisions is that a wall or fence may be sited back from the edge of a highway and still be "adjacent" to it provided that the function of the enclosure is clearly to define the boundary of the property concerned from the highway. As each situation is different there is no common standard for setback distance that may be deduced from cases. An appeal decision from Tunbridge Wells determined last month is of interest as here an inspector concluded that an enclosure which lay 1.7m behind a footway was not adjacent to it. The situation here was that there was a substantial bed containing young trees and shrubs in front of the fence in dispute. The inspector felt that this bed was a feature of some substance in its own right separating the fence from the footway. In addition the inspector averred that the distance which separated the fence from a person standing on the footway was such that the person could not touch the fence without entering the land belonging to the property. This he argued meant that there was no sense of "immediacy or proximity" of the fence. I look forward to this inspector's "arms length" standard being introduced in future disputes of this type!

Using part 2 class A permitted development tolerances, a wall between neighbouring properties can be constructed up to a maximum of 2m. However, my neighbour has constructed a large extension on the party boundary wall well in excess of 2m but less than the 4m allowed by part 1 class A. The development has a significant effect on my property but as an extension rather than as a means of enclosure it is permitted development. Can this really have been the intention of the legislators?

You touch on just one of the anomalies embodied in the present GPDO. I too find it difficult to understand how it can have been considered that any boundary fence or wall, not on a site frontage and in excess of 2m, should be subject to full planning control, while a house extension abutting the same boundary is permitted development up to 4m.

Please could you advise whether the planting of a hedge, the eventual height of which would exceed one metre adjacent to a highway, may constitute permitted development. It seems to me that although a hedge could be deemed a means of enclosure it is not something that can be erected or constructed, to use the wording in the General Permitted Development Order 1995 (GPDO).

The correct approach here is to consider whether a hedge is development in the first place, and clearly any living tree, shrub or plant, does not fall within the statutory definition of a building, engineering, mining or other operation. Therefore the operation of the GPDO is irrelevant. The only way that the planning system may operate to control hedge planting is where an appropriate condition has been imposed on a planning permission for development, although legislation has been promised to deal with the problem of overlarge "nuisance" hedges, such as fast growing Leylandii.

A 2m high fence has been erected along the front boundary of a neighbouring house, which being over 1m in height would normally require planning permission. While agreeing that the fence is unsightly, the LPA believes that it does not have control over the development because the boundary abuts a grass verge rather than the footpath. The General Permitted Development Order 1995 (GPDO) does not define "highway" but the verge forms part of the adopted road. Do you think that the authority is correct in its interpretation?

The GPDO states that the one metre rule applies where a wall or fence is "adjacent" to a highway. Cases have shown that a fence or wall at the back of a highway verge will be treated as being "adjacent". Even if a verge is found not to be part of the highway the term "adjacent" will be interpreted with some flexibility and set-backs of up to one metre have been accepted. The question to be answered in each individual case is whether the fence or wall may reasonably be perceived as defining the boundary between a property and the highway. It seems that the LPA in your case may be wrong in yielding control of this fence so easily.

Response

In a written representations enforcement appeal decision from Swale in Kent a wall which was 3.43m from the edge of a footpath was considered to be "adjacent" to the highway and therefore at over one metre in height was not permitted development. Here a front garden was long and an inspector reasoned that the wall appeared visually and physically near to the road and formed the principal enclosure of the front garden. A lower wall of less than one metre located in front of the one in contention was disregarded as a decorative and subservient feature. This feature curved away from each end of the wall the subject of the notice to run close to the rear edge of the footpath. The appeal was dismissed on grounds of harm to the street scene which was not outweighed by security considerations, and it is of interest that a plea under the Human Rights Act 1998 was rejected.

I am in dispute with a planning authority regarding the applicability of part 2 class B of the General Permitted Development Order 1995 (GPDO) relating to the formation of an access to the highway. It is argued that my client cannot exercise his rights because the land over which an access is to be taken is not within the curtilage of his dwellinghouse. I maintain that the access, which is off an estate road, does not have to fall within a curtilage or even that my client has to own the land in question. What are your thoughts on the matter?

There is nothing in the Order generally, or part 2 in particular, to suggest that the rights given only apply to the curtilage of any particular use or that the land concerned should necessarily be in the ownership of the beneficiary of the right. The only condition is that the access is required in connection with a development permitted by another part of the GPDO, normally being a hard surface for parking or a garage. In practice cases have shown that quite long accesses may be allowed by part 2 class B, subject to the broad constraint of the heading of the class as a whole indicating that it only relates to "minor operations".

When a boundary fence has been erected in the middle of a shallow stream running along the boundary between two domestic gardens could you advise whether the natural ground level for the purpose of measuring the height of the fence and supporting posts is the bed of the stream where the posts are concreted in, or the bankside adjacent to the stream. In the latter case the fence would be permitted development. In addition I would like to know whether any enforcement notice should be served on both neighbours.

Although the GPDO at article 1(3) does not specifically refer to "natural" ground level as being the datum, and walls and fences are not specifically cited, it is normal practice for their height to be measured accordingly. I think that it is reasonable to view the bed of a stream as the natural ground level, having been created by natural means, and if this is the case then this fence is not permitted development. As to the service of notices, planning law provides that these shall be served on the owner and occupier of the land or anyone else having an interest in it. In the case of walls or fences erected on property boundaries it is normally assumed that the party that carried out the development was legally entitled to do so, and that it is unreasonable to serve notice on a neighbour not culpable of the offence and not having the capability of complying with any notice requirements.

It has always been taken that fence heights are measured from original ground level. However, I have been recently challenged in an instance where a fence was placed on recently made up ground, taking the overall height to 2.90 metres. I have been unable to find such a reference and neither has my legal section or colleagues in surrounding districts. "Original" is defined in the GPDO, but only in the context of a building. Can you please advise?

As you say there is no guidance to be found in the GPDO but the normal rule observed in appeal decisions is that natural ground level is the appropriate datum. While in some cases natural ground level may not easily be established with any precision, particularly when the wall in question has already been erected on uneven ground, it is reasonable to try and estimate the position before the ground was disturbed. A number of cases are summarised in Development Control Practice at 4.3447.

My authority is currently considering whether a large dormer window at the rear of a house requires planning permission and is seeking clarification on the definition of ‘a roof slope which fronts any highway’ in Class B of the General Permitted Development Order 1995. The roof slope is about 22m from a rear footpath and about 26m from an adjacent cycle path. However, between the back garden of the house and these paths is an area of amenity land about 3 metres wide, and then an area of highway grass about 10 metres wide. Is this roof slope considered to front a highway?

Although "highway" is not defined in the Order, common law usage is that a highway is a way over which the public are entitled to pass and re-pass, including a footpath. Whether, for the purposes of Class B, a roof slope is considered to front onto a highway is a matter of fact and degree and will concern factors such as distance, orientation and the presence of any other buildings in the intervening space.

In a Yorkshire enforcement appeal case decided by the Secretary of State in 1982, it was concluded that the words "fronts on" must be used in the sense of "faces" and that a Council’s claim that a wall fronted a highway some 33m away was straining the meaning of the term unduly. A similar view might be taken here, although the circumstances are obviously distinguished by the much shorter distance between the roof slope and the highway. A further case of interest can be found in Planning 24 October 2003 p22.

A property fronting onto a classified road has a hard-surfaced front garden and no front wall. Would works carried out by the Highway Authority to drop the kerb amount to development granted permission under Class B of Part 2 of the GPDO, or would they be considered de minimus?

A vehicular crossover carried out by a Highway Authority is not, in itself, development by virtue of sec. 55(2)(b) of the 1990 Act which exempts the carrying out of works by a local authority within the boundaries of a road. This was confirmed in a 1988 case in London, where an inspector stated that such work carried out by a local highway authority under sec 184(11) of the Highways Act 1980 following a request from the adjacent householder was not development.

Response

Further to the regarding the formation of a crossover where a house fronts onto a classified road and has a hardsurfaced front garden and no front wall, whilst your reply is factually correct in that the physical works to the footway by dropping the kerb do not constitute development, it is my view that the non-tangible right of access is what requires permission. In certain circumstances this is permitted development by virtue of Schedule 2, Part 2, Class B of the GPDO 1995, providing it is carried out in connection with another exercise of permitted development rights. This Class, however, specifically excludes classified roads, and therefore any vehicular access onto a classified road needs permission.

Sec.336 of the 1990 Act states that "the formation or laying out of a means of access to highways" is an engineering operation and, where this is to a classified road, it is excluded from the permitted development rights provided by Class B Part 2 Schedule 2 of the GPDO. However, for permission to be required, the formation of the access must involve physical works not otherwise deemed to be permitted development, and in my view these cannot include what you describe as "non-tangible rights". In the case in point, these were the previous removal of the wall and the creation of a hardstanding, which in totality constituted an operation requiring planning permission, rather than the works carried out by the Highway Authority to drop the kerb. Recent appeal cases tend generally to support this view.

My authority has received an enquiry about the construction of a concrete base for a silage clamp, on a farm in excess of 5 ha. In the authority’s view, it is an engineering operation that is permitted development under Part 6 A (b) the GPDO 1995 and does not require prior notification. However, the farmer has said that he may want to add 3m high metal side walls in the future. Would these still be classed as permitted development under A1 (f), which has a height limit of 12m, or would they be assessed as a means of enclosure under Class A, Part 2, which sets a limit of 2m above ground level?  Can Part 2 be used to take away rights under Part 6?

It seems to me that the answer turns on understanding the difference between a building and a means of enclosure. In essence, Class A of Part 6 Schedule 2 of the GPDO grants permission, subject to an extensive range of exclusions and conditions, only for development comprising the erection, extension or alteration of a building, or any excavation or engineering operations which are reasonably necessary for the purposes of agriculture within that unit. But Article 1 of the Order expressly excludes walls or other means of enclosure from the definition of ‘building’ for the purposes of Schedule 2, except in the case of Class B of Part 31 and Part 33. Thus, in my view, the walls proposed here would not be permitted development under class A1 (f). Instead, they would fall to be considered under Class A of Part 2, which deals with minor operations.

My local planning authority has told me that I need permission to terrace part of my garden but I cannot understand this and the authority has given no reasons. The works include excavation of the ground up to about 1.5m deep over a distance of 12m and building a number of retaining walls. There are no neighbours on either side of the garden for at least 300m. Can you please explain?

The starting point is to determine whether what you propose amounts to development for planning purposes. If so, it is then necessary to consider whether it is exempt from the need for express planning permission from your local authority because it is ‘permitted development’ under the GPDO 1995. Two types of operation are proposed here: the creation of terraced ground levels and the construction of associated retaining walls. In my view the proposed excavation works are an engineering operation and development which, because of its scale, could not be considered de minimis. The retaining walls are a building operation. Although in many circumstances the construction of walls is permitted development under Class A, Part 2, Schedule 2 of the GPDO, to avail of such rights there must be a function of enclosure. Both case law and appeal decisions have held that retaining walls do not qualify under this class and thus, irrespective of any conclusion on the excavation works, permission is required for the proposed development.

Is the formation of a private driveway off an unclassified road to provide access to a proposed hardstanding within a residential curtilage 'permitted development' under Class B, Part 2, Schedule 2 of the GPDO where the land outside the curtilage on which the access is to be formed is adopted open space? Or would this constitute a change of use?

The hardstanding would be permitted development and sufficient to trigger the rights on means of access set out under Class B. The extent to which this class grants permission for access over land between a residential curtilage and a public highway was considered in Shepherd v SOSETR & Three Rivers DC [1997]. Here the Court of Appeal ruled that a means of access that involved widening a public footpath on intervening land went beyond what the Secretary of State could have contemplated when making the Order. Permitted development rights should therefore be construed in a manner that would be consistent with the protection of other public rights envisaged by other parts of the planning system, the court held. Applying such an approach to your case suggests that if the proposed driveway would have a material effect on the public open space, it would not be permitted development. It would constitute engineering works requiring express permission.

In assessing walls against permitted development allowances, my authority has always measured its height from the developer's side. My attention has been drawn to an appeal decision from Dunfermline in 1989 (DCS No: 45885122) in which the inspector held that it should be taken from whichever side of the wall is the higher. Given its age, has this point of view been contradicted by later decisions or case law?

The definition at paragraph 3, Article 1 of the General Permitted Development Order 1995, which provides that measurement should be made from the highest adjacent ground level, applies only to buildings and plant and machinery and does not extend to walls and fences. There is no prescribed method for measuring the height of walls where the land is uneven. The general practice is to measure this from the adjacent natural ground level. This is normally taken from the median point between ground levels on the high side and the low side. Cases where this issue has been considered are examined in Development Control Practice 4.3447. The review of permitted development rights carried out by consultants for the Government in 2003 recommended that in cases where natural ground levels change between land defined by enclosures, the height measurement should be taken from the lowest natural ground level. This would appear to accord with the approach taken in the Dunfermline decision.

Casebook recently reported a decision where an inspector decided that a 225m driveway across a field to access a dwelling was permitted development (Planning, 29 September, p22). The main issue revolved around the definition of "means of access". Planners have usually believed that this means an opening to a highway from adjoining land to provide access and is not intended to include measurable dimensions. Otherwise, it could mean a road of any length and any width. Under this interpretation, a shed built under domestic permitted development rights in Penzance could be linked to a highway in London via a new motorway of unlimited width and would apparently also be permitted development. Can you please clarify the interpretation of "means of access"?

The term "means of access" is not defined in the General Permitted Development Order (GPDO) 1995. However, as noted by the inspector in his decision, Sec. 336 of the Town and Country Planning Act 1990 states that it "includes any means of access, whether private or public, for vehicles or for foot passengers, and includes a street". In view of the latter reference, the inspector reasoned that the definition would include a long driveway, given that its purpose was to link an existing entrance onto the main road to the house. He rejected the planning authority's interpretation that "means of access" in Class B, Part 2, Schedule 2 of the GPDO means a small area of land used to get from one side of a boundary to another, with one side being a public highway. The inspector's approach is consistent with previous decisions where accesses of significant length have been held to be permitted development under Class B. How far this can be extended is a matter for the courts. I am not aware that it has been tested.

Does the erection of a three metre high walled garden on agricultural land require consent?  The site is on an agricultural unit of more than 5 ha and we have established that there is no formation of a new planning unit or a material change of use.

This development is not permitted by Part 2 Class A of the General Permitted Pevelopment Order 1995 (GPDO) as the maximum height of enclosure allowed thereunder is 2 m.  Neither would it be allowed by Part 6 Class A of the GPDO as this refers to agricultural buildings and the definition of a "building" in the Order specifically excludes any gate, fence, wall or other means of enclosure. To qualify as a building I would have thought that some form of roof framework over the garden would be required, in which case Part 6 rights might apply subject to all the relevant conditions being satisfied.

Class A, part 2, schedule 2 of the General Permitted Development Order 1995 provides that a means of enclosure "erected or constructed adjacent to a highway used by vehicular traffic" is not permitted where it would exceed 1m above ground level. The term "adjacent" is not defined. However, I think that the height limit may stem from the condition that is often applied to prevent visual obstructions of more than 1m in height within a visibility splay. So it would seem reasonable that a means of enclosure exceeding 1m in height and located more than 2.4m back from the edge of the highway should not be considered "adjacent". What is your advice? Presumably a hedge exceeding 1m in height would not be considered "erected or constructed"? JW.

As you say, "adjacent" is not defined in the Order. There is no guidance on how near a fence needs to be to the highway for it to be considered "adjacent". This is a matter of fact and degree and has been the subject of various appeals, as discussed in Development Control Practice 12.31. All that is clear is that a wall or fence does not have to touch the edge of a highway to be considered adjacent. It may be some distance back provided it is close enough to maintain the perceived function of forming a boundary between a highway and a property. Distances of up to 6m have been held to be adjacent. Neither is there any guidance on what constitutes the edge of a highway for this purpose. While part 6, schedule 2 on the operation of the 25m rule refers to the metalled part of any road, inspectors have ruled that a highway can include grass verges. The primary purpose behind the limitation is clearly to safeguard satisfactory sightlines at junctions. Where sightlines are not affected by the means of enclosure, it could be argued that the structure should be treated as permitted development if it is less than 2m high. As hedges are not development, they are beyond the scope of the Order. PM.

What constitutes a 'highway' for purposes of interpreting the General Permitted Development Order? RF.

This is considered in section 4.3442 of Development Control Practice. It clearly includes all adopted roads and footpaths, but would also include other roads and footpaths which the public have a right to pass over. In class A of part 2 of schedule 2 of the General Permitted Development Order 1995 dealing with gates, walls, fences, etc, the restriction to 1 metre.

A client wishes to construct an access to a new hardstanding within his dwelling curtilage from a rear unclassified road. He already has an access from the front. The council claims planning permission is needed for the new access because the property already has an access and therefore it is not "required" in accordance with Part 2 Class B of the General Permitted Development Order 1995. Do you agree? GR.

If your client did not consider he required an additional access, he would not be proposing to spend money constructing one! For whatever reason, your client wants to be able to park vehicles in front of and behind his house and is constructing hardstanding to facilitate this. The access is required as part of this work and is permitted development. JH.

I want to erect a gate just under 2 metres high across my drive set back 2 metres from the pavement edge, 5 metres from the carriageway. The council invited me to submit a lawful development certificate application but then refused it saying the gates are adjacent to the highway.  I consider they should be permitted development. What do you advise? The authority has indicated that they may support a full planning application! They obviously have not got enough work on. MT.

In my experience the term "adjacent to a highway" in class A of part 2 of schedule 1 of the General Permitted Development Order 1995 is extremely difficult to interpret. The issue is dealt with at length in section 12.3127 of Development Control Practice. A fence, gate, etc does not have to actually abut a highway for the 1-metre height limit to apply - it may be a little distance away provided its function is to separate highway land from other land. Determination of this is very much a matter of perception. In your case you presumably intend to set the gate back 5 metres from the road so you can stop your car safely to open and close it. In these circumstances I consider the council’s interpretation reasonable and an appeal against the certificate’s refusal would be unlikely to be successful. I would advise submitting a planning application as the council suggests. I am sure their inviting an application is a result of their consideration of the legal issues and not a work creation exercise. JH.

Under part 2 of schedule 2 of the General Permitted Development Order 1995, a means of enclosure adjacent to a highway used by vehicular traffic can only be up to a metre high. Does this refer to any road or driveway used by vehicles, i.e. a private unadopted road or a typical private drive serving a few houses on a modern estate, or only adopted highways? NH.

This issue is explored in section 4.3442 of Development Control Practice. There is no statutory definition of "highway". From appeal decisions it would seem a highway is any way along which the public has the right to pass and repass, so it could include unadopted roads and private roads used by the public but not a gated road from which the public is excluded. It should be noted, as you indeed point out, the one-metre rule only applies to highways used by vehicular traffic, so fences, etc can be 2 metres high adjacent to footpaths. JH.

Response

You were right to say there is no statutory definition of a highway, but the common law definition of a way over which the public have a right to pass and re-pass must be assumed to be the correct one unless the statute or regulations impose another definition or the context requires one.  Therefore, I disagree that a ‘private’ road counts as the public would have no RIGHT to pass and re-pass.

But please give your opinion on this one: a client’s property is bordered by a public footpath (i.e. a highway) but there are also private rights for vehicular access.  Is this a ‘highway used by vehicular traffic’?  We think, on a strict reading of the Order, that it is, but we also think that parliament meant the public had to have the right to use it for vehicles as well as on foot and never intended it to apply to driveways etc that just happened to double as footpaths. MB.

Further Response

Point taken in that the public would not have the right to use a private road so it would not be a highway. Regarding your query, I think you have almost answered it yourself! On a strict reading of the law this is a highway used by vehicular traffic. I would, however, suggest you contact the planning authority concerned and see if they think permission is necessary. JH.

Further Response

I am concerned about the reply given to NH. The correct answer was actually given, but then the advice veered off into a mistaken situation which it is important to clear up. I am writing having been through this process with a residential side extension under the former General Permitted Development Order and with a legal opinion.  JH was correct in stating a highway is a "way over which all members of the public have a right to pass and repass". However, one must add the following: "Their use of the way must be as of right not on sufferance or by licence" (Encyclopedia of Highway Law and Practice commentary, referring to Common Law). JH appears to consider that this right exists anywhere where the public are not excluded, whatever that might mean, which is wrong. The fact that anyone might be able to pass and repass does not imply or confer a public right. For a highway to be created there must be dedication (express or implied) by the owner and an acceptance by the public of that dedication. An acceptance by the public is often contained in a formal agreement under the Highways Act. Implied dedication might for example occur after 20 years use without permission. This must be without force and as a public right. So a ‘highway’ cannot include "unadopted roads or the private roads used by the public" to use JH’s phrase unless they have been dedicated. Gating and physical exclusion are irrelevant. GH.

Further Response

This is a complex issue and in my original response I did refer readers to section 4.3442 of Development Control Practice which deals with the issue more fully. Inspectors in appeal decisions have not always adopted the criteria you and MB suggest apply.  I did not say that because a road was used by the public it was a highway for this purpose, but rather that it could be. Conversely, a gated road (I was in this context thinking of urban cul-de-sacs, not those in rural areas which are public highways but have gates across them to control livestock) would not be a highway as the public are clearly excluded from it. JH.

Further response

MB says that  in the absence of any other definition the common law one  must  apply  unless  the  context  requires  otherwise, so let us consider  the  context - the  Order.  However one defines a highway, that definition must be applicable throughout the Order, as this otherwise demonstrates that the context requires a different definition.

Excluding private roads from the definition (by adopting the common law position) may appear relatively harmless in the context of garden fences but this unlocks myriad other permitted development rights. Looking just at house extensions under Part 1 what is clear from every incarnation of the Order is that the restrictions which refer to a highway are generally concerned with the house front, but if one excludes private roads from the definition one surrenders this control. It  beggars  belief  that  this  lack  of  control  over  front extensions  could  be  accepted  either  by  planners or by the communities living on private roads.

When this is tested at appeal in respect of Part 1 rights I have only ever seen acceptance from Inspectors that a privately maintained road can be a highway for the purposes of the Order. The usual tests applied are whether the path or road has the physical and relational characteristics typical of a highway.  That is, whether it is a linear path or way providing access for the occupants and the public to a number of different properties. Part 2 narrows this definition by reference to vehicular traffic but I can see no possible reason to further discriminate between a highway for Part 1 and a highway for Part 2. RW.

Further Response

Again I would refer readers to section 4.3442 of Development Control Practice which indicates inspectors frequently do not consider private roads to be highways for General Permitted Development Order purposes. I do, however, realise this can lead to anomalies as RW points out – an inappropriate front extension can look just as ugly adjacent to a private road as a public one even if it might not need planning permission. JH.

Schedule 2, Part 2, Class B of the General Permitted Development Order 1995 permits accesses to unclassified highways. Article 3 (6) of the order states such development is not authorised if it obstructs the view of persons using a highway. Would it be reasonable to refuse a lawful development certificate for an access solely on highway safety grounds, such as the access being too close to a junction? The reason for this query is the county highway authority has requested that the council refuse certificates for accesses for which they will not grant a highways licence to create the access. SD

Forming an access would not obstruct visibility, though the erection of associated walls and fences might. Thus, it would not be reasonable to refuse a lawful development certificate in circumstances like where an access is too close to a junction. The planning and highways legislation have different provisions and to apply the provisions of one to the other is not appropriate. Lawful development certificates only relate to planning legislation, not other legislation.  JH.

Part 2, class B of schedule 2 of the General Permitted Development Order 1995 allows vehicular accesses "where that access is required in connection with development permitted by any Class in this Schedule (other than by Class A of this Part)." A householder wants a new access to an existing hardstanding on a non-classified road. I consider this needs permission as it is not required in connection with a development permitted by another part of schedule 2 as the hardstanding already exists. Is this correct? AM.

I have not been able to find an appeal addressing this issue. My inclination, however, is to say that planning permission is not required as this gives a more logical interpretation. Clearly a hardstanding and access constructed together do not require permission. It would therefore seem unreasonable to insist that, if a hardstanding is constructed and then an access laid later, which produces the same end result, planning permission should be needed. Furthermore, there is no requirement in the Order that the work must be carried out simultaneously. JH


Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Sign up now
Already registered?
Sign in

Have your say...

Before commenting please read our rules for commenting on articles.

If you see a comment you find offensive, you can flag it as inappropriate. In the top right-hand corner of an individual comment, you will see 'flag as inappropriate'. Clicking this prompts us to review the comment. For further information see our rules for commenting on articles.

comments powered by Disqus

Join the conversation with PlanningResource on social media

Follow Us:
Planning Jobs

Forthcoming Events

Congress XII: A New Culture of Urbanism

  • Thu 14 Sep 2017 - Sun 17 Sep 2017
  • Aarhus, Denmark

London Infrastructure Structure 2017

  • Thu 14 Sep 2017
  • QEII Centre, Westminster London SW1P

Planning for Housing

  • Wed 4 Oct 2017
  • ILEC Conference Centre, London