Tuesday, 26 April 2011

Creating a lovely garden

My wife recently drew my attention to an article in the May 2011 issue of Homes & Gardens which twittered enthusiastically about “a beautiful informal garden on arable land” which a couple had created around a property they had bought in the countryside.

According to the article, the couple had found a property ‘half built’ in a small farming village. They spent a year completing the house and then set about creating a garden around it. As one of them said - “At that time, the garden didn’t exist – it was just arable land.” Creation of the garden included the erection of a boundary fence and the planting of boundary hedges, as well as laying out the garden itself.

It is possible, of course, that the planning permission for the house showed the plot as including the land which was later turned into a garden, but if not then the creation of the garden would have been a material change of use of that land which required its own planning permission. If the latter was the case, then I hope for the sake of this couple that the change of use took place more than 10 years ago, as it would have been vulnerable to enforcement action by the local planning authority until it became immune from enforcement under the 10-year rule.

When local planning authorities become aware of changes of use of this nature they tend to be rather unsympathetic, and are not usually persuaded to grant planning permission either prospectively or retrospectively. The success rate in appeals against these refusals also tends to be very low. These proceedings are often combined with enforcement action, and the outcome can be very disappointing for the aspirant gardeners. On the other hand, a reader drew my attention to a case recently where the local planning authority seems to be very reluctant to take any effective enforcement action against one such suburban encroachment on the countryside, despite its effect on the character of the rural area and on local amenity.

There is a possibility that, if the site is inconspicuous, no-one may notice the change of use. I can recall advising in such a case some 12 years or so ago, at a time when the recently extended garden in that instance would have been vulnerable to enforcement. The owner sought my advice as to what action he could take to protect his position. My advice was to do nothing and to wait until 10 years had gone by; then the change of use of the land would become immune from enforcement and would also be lawful. Lawfulness is automatic as soon as immunity is achieved; you don’t require a Lawful Development Certificate unless circumstances arise which make it desirable to obtain written confirmation of the lawfulness of the development.

Of course, if Clause 104 of the Localism Bill becomes law in its present form, this advice will no longer apply in future, and unauthorised garden extensions, if they are ‘concealed’ (a very widely defined term in the proposed legislative amendment) could remain potentially liable to enforcement for an indefinite period.

The fact remains that, even without Clause 104, extending a garden into what had previously been farmland, pasture or open countryside is a risky undertaking.


1 comment:

  1. I have a similar situation: the next door neighbours have recently purchased a plot of land which the builders had left unused. It was a jungle of weeds and bushes for over 25 years. Our neighbours have turned it into a garden. The Local Authority have told them that they need planning permission as the land has a nil use in planning law.

    They will have to submit a planning permission application - which we are going to resist as they are virtually out there working on the land (and burning wood etc) all day every day.