Editor's pick: Wall approved contrary to landscaping scheme

A Lancashire householder has secured a lawful development certificate confirming that a wall 90 centimetres high is permitted development, despite council claims that it is precluded by an approved landscaping scheme.

The land comprised mown grass between the curtilage of the appellant’s property and an area of public open space bordering a tidal estuary. A landscaping scheme described the area as ‘transitional open space’ designed to provide a setting for dwellings in the area. The council stated that the approved landscaping scheme for the site did not include a wall. Since landscaping works could also include walls, it argued, the development would be contrary to the agreed scheme.

Citing Carpet Décor (Guildford) Ltd v Secretary of State for the Environment and Guildford Borough Council [1981] and Royal London Mutual Assurance Society v Secretary of State for Communities and Local Government [2013], the appellant claimed that it is a clearly established legal principle that where councils seek to exclude the operation of permitted development rights, they should do so through the use of a condition. The condition requiring the submission, approval and implementation of a landscaping scheme did not preclude the addition of a wall, he maintained.

The inspector agreed that the landscaping condition did not clearly or unequivocally prevent the construction of the wall. The land did not form part of the planned area of open space and none of the conditions imposed on the planning permission for the housing development removed permitted development rights in respect of the appeal site, he found. The wall was permitted under class A, part 2, schedule 2 of the General Permitted Development Order 1995, he concluded.

Inspector: Clive Whitehouse; Inquiry

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