Tuesday, 13 May 2014

Earth-moving for garden landscaping

A topic that has vaguely troubled me for some years is the doubtful status in planning terms of engineering works carried out in a domestic garden in order to realise some of the more adventurous garden designs that are publicised on TV as well as in various magazines.

The General Permitted Development Order is of limited assistance here. Part 1, Class E permits the provision within the curtilage of (among other things) any building or enclosure, swimming or other pool, required for the enjoyment of the dwellinghouse as such. “Building” would include anything that amounts to a structure, so various built features could be included in the design, subject to the limitations and conditions set out in Class E. For example, raised decking (or any balcony or other raised platform) is ruled out if its height from natural ground level is greater than 300 millimetres. Class F also permits hard surfacing, and this is not limited as to its area (in contrast with Class E). [There are, of course, exclusions, limitations and conditions in Class E, which I have discussed in a previous blog post, and do not propose to repeat here.]

When addressing a meeting of SWENFORCE (South West enforcement officers) last week, I speculated that one might also rely on Part 2 in respect of fences, gates, walls and other means of enclosure, but an earth bund (which could in principle come within Part 2 if it performs the function of enclosure) would not be permitted development if it was wider than is really necessary to perform that function or if it does not in reality act as a means of enclosure. In some circumstances, it might be possible to argue that raised banking in the garden does in fact constitute a structure, and is therefore permitted development under Part 1, Class E, but the position remains uncertain.

What is certainly not covered by the GPDO is more extensive excavation, and other earth-moving, taking the form of engineering operations rather than building operations. And yet I can think of quite a few garden landscaping schemes, even involving fairly extensive earth-moving, which have produced an entirely acceptable garden landscape, and which have no appreciable impact in planning terms. It seems to me that there is a lacuna in this respect in the GPDO, and there should perhaps be an additional Class within Part 1 of the Second Schedule to cater for works of this type.

The enforcement officers to whom I was lecturing had not encountered this problem in the course of their work, and this certainly accords with my own impression that most local planning authorities turn a blind eye to what in theory might be unauthorised development in the garden, presumably because no-one ever complains about it. The problem is that if a jealous or resentful neighbour does complain, there may be one or two enforcement officers who will see it as their mission to charge into action over it.

I am only aware of one appeal decision that is in any way relevant to this topic. Enforcement action was taken by Greenwich LBC against works carried out in the rear garden of a house as part of a televised makeover of the garden (instigated and broadcast by the BBC no less!). However, this action appears to have been directed at the structures that had been built, including two cube structures and an area of decking, plus a structure made out of old telegraph poles. In practice, it seems that it was only the height of these that was a problem, and the inspector accepted that reducing them below 3 metres in height would be acceptable. The question of any earth-moving or other landscaping does not seems to have arisen in this case.

In practice, even if the earth-works do amount to engineering operations, it is very unlikely in most cases that it would be expedient, under section 172, to serve an enforcement notice, and I would hope that common sense would prevail. I can’t recall off-hand if the NPPG repeats earlier ministerial advice to the effect that enforcement action should not be taken simply in order to ‘regularise’ the position where planning permission has not been obtained for development, if the development is doing no real harm in planning terms, but this principle should apply in any event.

The proper and permanent solution, however, would be an amendment of Part 1 of the Second Schedule to GPDO to permit engineering works for the purpose of landscaping a domestic garden. No doubt it would be necessary to set certain parameters, but this would be better than the continuance of the uncertain and unsatisfactory situation that obtains at present.



  1. Two obvious sections in the NPPG on enforcement action. Firstly:

    "When should enforcement action be taken?

    "There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.

    "Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.

    "In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 207:
    •National Planning Policy Framework 207. Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.

    "The provisions of the European Convention on Human Rights such as Article 1 of the First Protocol, Article 8 and Article 14 are relevant when considering enforcement action. There is a clear public interest in enforcing planning law and planning regulation in a proportionate way. In deciding whether enforcement action is taken, local planning authorities should, where relevant, have regard to the potential impact on the health, housing needs and welfare of those affected by the proposed action, and those who are affected by a breach of planning control."

    And the secondly in relation to when enforcement action is appropriate:

    "When might formal enforcement action not be appropriate?

    "Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case.

    In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
    •there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
    •development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
    •in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed."

    So it is not always necessary, but I am aware of enforcement action being taken when ground was leveled to create a flat surface for a wicket. Also a LPA I know of refused a CLOPUD for the laying of a hard surface, arguing that the 'leveling' was an engineering operation. I would contend that the area could have been made flat by use of a rotavator or gardeners digging over the area (having used a mini-digger in my own garden for landscaping).

  2. I agree that (in theory) exlicit limitations in a PD grant should be helpful, but experience of existing PD limits (especially for householder PD) tends to suggest as many problems with this approach. We used to operate a rule of thumb that if the earthworks could be completed by one man using a shovel and a wheelbarrow in one afternoon then the works were de minimis - more than this was an engineering operation requiring PP. And please can you stop taking cheap shots at LA officers - it just makes you look petty.

  3. Gardens used to belong to houses, and so enjoyed PD Rights - at least to some degree.

    Increasingly, gardens belong now to ground floor flats - for which there are no PD Rights, so I suspect that the issue of what actually constitutes 'development' on backyard plots may require clearer definition.

    One of our recent projects - a ground floor flat - was the subject of an enforcement investigation because a new paved patio at the rear was deemed to "constitute a material change" in terms of what had been approved - so a deviation from the submitted drawings. (We didn't have the garden designer's layouts at the time the application was made).

    We hoped to argue that the provision of a patio - even if it were to cover the whole of the rear garden - would not constitute 'development' as such (provided there was no significant bearing on trees, earthworks, or foundations) but the local authority insisted that we submit an application for the 'amendment' anyway, without ever really providing a satisfactory explanation as to why! I'm still not convinced that they were right to insist upon this but, at the same time, I couldn't prove that they were wrong!

    I suppose it would be beyond the remit of GPDO2.1 to clarify what actually constitutes development in such circumstances, 'permitted' or otherwise.

  4. Why create more legislation on a total non-issue? The fact no enforcement officer has had a problem with this is telling.
    If someone complains the first question is whether it is expedient and in the public interest to take action...alsmost certainly the answer is no. record that, job done.

    lets not let the government create more badly worded legislation that just complicates a matter that LPAs have been dealing with in a very reasonable way for years.

  5. I have to agree wholeheartedly with Anonymous's comments of the 16 May. Why on earth legislate on something which everyone agrees is not a problem? And which has not apparently generated any appeal cases? Furthermore it would be a fiendishly difficult task to frame permitted development rights satisfactorily which would be applicable to all shapes and sizes of gardens and types of engineering works. Given the government's record on performing such tasks it would certainly beyond our current parliamentary draughstmen!

  6. I have learnt that there have in fact been one or two attempts at enforcement action from time to time, with resulting appeals. The decisions have naturally depended on the facts in each case, but the possibility that an LPA might get the bit between its teeth on this issue does make it desirable that a measure of certainty should be sought through the medium of the GPDO.

  7. This is an interesting point. In a related matter, has anyone come across an issue whereby archaeological trial pits would require planning permission? Obviously this is covered where permission has been granted and conditions would usually be attached accordingly. However where there is no permission in place but investigation works are required, I would consider that to be an engineering operation and so strictly permission would also be required for those works.

    1. I asked my wife about this, and she says that she never experienced any problem when carrying out archaeological excavations. They never sought planning permission and no-one ever queried the position (although these were, of course, properly authorised ‘digs’ under the relevant legislation governing excavation on archaeological sites – some were exploratory, others were on known archaeological sites).

      My reaction to the question is therefore that, bearing in mind the purpose of any such excavations, they are likely to seen as de minimis and would not in any event be regarded as ‘engineering operations’ (not least, because they are not the sort of operations that would be supervised by an engineer.)

      Incidentally, this is not the only example of a practical commonsense approach being taken where certain minor operations are not interpreted as development. On many allotments, various sheds and similar structures are erected. Many of them are large enough to be regarded as buildings, so that their erection is theoretically a building operation under section 55, yet (because of their location) they are not PD, but I have never heard of anyone applying for PP for these structures, nor of any LPA querying the position.

      I suspect it is also the reason why no-one has seriously queried earthworks carried out in order to landscape a domestic garden.