DC Casebook: Householder Development - Fence ruled unlawfully close to highway

An enforcement notice requiring the removal of a fence on a housing estate in Kent has been upheld after an inspector decided that it did not fall within permitted development limits.

The appellants asserted that the fence was not adjacent to a highway and so was permitted under class A, part 2, schedule 2 of the General Permitted Development Order (GPDO) 1995, which allows means of enclosure up to 2m high. Parts of the structure were set back up to 50cm from the back edge of the pavement and separated by a grass verge, they pointed out.

The inspector decided that the pavement formed part of a highway used by vehicular traffic, even though it did not physically carry vehicles. In his opinion, it was inappropriate to split the highway into two parts in the manner suggested by the appellants. The fence's distance from the edge of the footpath was irrelevant and the strip of grass too narrow to provide any separation from the highway, he opined. On that basis the maximum height permitted under the GPDO was 1m, he held.

He recognised that other sections of the fence were set considerably further back from the highway. However, he referred to Garland v Minister for Housing and Local Government [1968], where it was held that operational development must be considered in its entirety and not be subdivided into parts that constitute permitted development and others that are not. If one part of the fence was unlawful the entire structure was, he ruled.

On the planning merits, he considered that the fence's industrial appearance was wholly out of keeping with the well-designed estate. He decided that the only remedy was demolition. In his opinion, amending the notice to require a fence to be built under permitted development rights would be unclear because the term "adjacent to the highway" is not defined in legislation.

Inspector: Alan Woolnough; Written representations

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