Agenda item

Following the resolution of Council, a report had been referred to the Sub-Committee to consider the issue of walls which had been erected at the front of a property in the borough and any action that could be taken as a consequence.

The report detailed that a complaint was received regarding high boundary walls that had been erected at the front of a residential terraced house in Rainham.  Following investigation, it was found that two brick walls had been erected to the front of the property along each side boundary.  Each wall was 1.96 metres high from the front of the house itself for a distance of 3.25 metres with the height reducing down to 1.15 metres to the front of the property, adjacent to the public highway.

The issue of whether the particular walls fell under permitted development was still being considered.  It was considered by officers that the examples of the walls provided insufficient justification of a problem that required the removal of permitted development rights across the borough in relation to walls and fences and that such a proposal was unlikely to be supported by the Secretary of State and would have resource implications.

In terms of whether the wall needed planning permission or not, staff had sampled relevant appeal decisions across the country and it appeared that any wall/fence perpendicular rather than parallel to the highway was not “adjacent” and would likely be permitted development if it was not considered a danger to users of the highway. 

The report detailed that there was little guidance or precedent in relation to the issue of danger.  Staff were of the view that a high wall/fence that obstructed the view of pedestrians to any vehicle leaving the site and vice versa could be a danger. Unlike a planning application, the decision was not made on policy or the merits for and against.  For that reason no third party consultation had been undertaken.

In the circumstances, staff had sought a legal opinion on whether any part of the wall needed planning permission before deciding whether any action could be taken and if so in what form.  As to whether any enforcement action could require the removal of the whole wall, it would normally be appropriate for enforcement action to solely address the harm being caused and the actual part of the development which needed permission, so officers’ current view was that it would not be appropriate to require the removal of the whole wall, although a legal opinion on this point was also being sought.

The report also informed the Sub-Committee that another important consideration was that an Article 4 direction in relation to front walls and fences would result in an unknown number of planning applications being required to be submitted should residents wish to put up a new boundary treatment or replace existing. 

An Article 4 direction could result in significant resource implications for the planning service. This outcome would be disproportionate to the comparatively isolated frequency and scale with which householders sought to use permitted development rights for front walls and fences in a way which, by any measure, was markedly and unreasonably harmful to their neighbours.

The Sub-Committee noted that in officers’ view the justification for an Article 4 direction covering front walls and fences was weak.

It was considered that there was insufficient justification for an Article 4 direction covering the whole borough with a likely outcome that any Article 4 direction would not be supported by the Secretary of State.

The Council resolution asked the Sub-Committee to consider and recommend any action to Cabinet, but due to the conclusion that the erection of front walls and fences was unlikely to adversely affect the character of the borough or residential amenity, no action was recommended.  It was therefore recommended that no further action be taken in relation to Article 4 directions and that subject to legal advice, action on the walls may be taken on the grounds of highway safety.

The current position was that the resident had submitted an application for a certificate of lawfulness claiming that the walls did not need planning permission. There was little clear guidance to enable Planning Services conclude whether the walls required planning permission or not, so the service had sought a legal opinion on the matter. The Sub-Committee was informed that this might take a little time, but it was considered appropriate to base any action on that legal advice.

A Member was of the opinion that enforcement action be taken against the walls in the public interest (even if as a test case) to resolve the problem and avoid the need for an Article 4 direction.

The Sub-Committee noted the report and agreed that no further action be taken until legal advice was received by officers.

It was also noted that the Sub-Committee would be updated on any developments on this matter.