Could your decking be ripped up by the Council?

Several newspapers have picked up on the story of Lesley Cherry from Stockport, Greater Manchester, who had failed to get planning permission for raised wooden decking at the back of her house, and came home from holiday to find that council workers had destroyed the decking while she was away.

The papers would like us to believe that this came ‘out of the blue’, but it undoubtedly had a history. An Enforcement Notice does not get served without some sort of prior warning. You will get a letter or a call from an enforcement officer and/or you will receive a Planning Contravention Notice (‘PCN’). That is the point at which alarm bells should start ringing, and this is the time to engage an experienced planning lawyer to act for you. Timely intervention may even persuade the council that no breach of planning control has occurred, or that a retrospective planning application might be considered.

In the Stockport case, the first thing to do would have been to see if the decking could in fact come within the definition of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order. In practice, it appears that it would not have done so, due to the exclusion from the categories of permitted development authorised by Classes A and F of the construction or provision of a veranda, balcony or raised platform. However, an appeal against the Enforcement Notice could still have been run under Ground (a), namely that planning permission ought to be granted.

However, Mr and Mrs Cherry appear not to have done this, and so the Enforcement Notice took effect without being appealed. In those circumstances, the property owner is completely stuck, and has no choice but to comply with the notice, failing which an offence is committed. In the Stockport case, it seems that the Council was getting no response at all, and the defendants did not even attend court when summonsed, so it may well have seemed that an injunction under section 187B or direct action under section 178 were the only practical options. Non-appearance to the charge in the magistrates' court may have suggested that getting an injunction would be a waste of time and costs, so direct action under section 178 may have looked like the best bet.

It might seem to the casual observer that the LPA was a bit heavy-handed, but enforcement action should not be ignored. The owners should have got a good planning lawyer on board right from the start and let him or her run a section 174 appeal for them. Having failed to do that, and having failed to respond in any way to the enforcement action, they really only had themselves to blame for what happened.

© MARTIN H GOODALL