REPORT OF THE DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES TO DEVELOPMENT CONTROL COMMITTEE
1. TCP/17105B Tideways Cottage, The Causeway, Freshwater, Isle of Wight
The
purpose of this report is to appraise Members of an ongoing complaint regarding
works at the above property and to consider whether or not any of the
development undertaken should have required the formal consent of the Local
Planning Authority.
Tideways
Cottage is the former railway level crossing keeper’s property which is located
on the northern side of the Causeway.
On the north and western sides it abuts the former railway line which is
now used as a cycle track. Although the
cottage abuts the highway its grounds run in a north easterly direction
alongside the cycle track extending some 0.38 hectares in area. To the south east beyond a dog legged
boundary is Afton Thatch, a residential property.
The planning history shows an approval for alterations and extensions in March 1980 with a further application for a change of use from dwelling to restaurant refused January 1983.
In November 1996 the Local Planning Authority received a letter expressing concern over the condition of the grounds at Tideways Cottage. The letter contained the following paragraph:
“For the last few years the owners of Tideways …. has not been living at the property but has been letting it as a holiday cottage. Since that time he has allowed the previously cleared land to become derelict and overgrown with brambles, tangled undergrowth, trees and seeded scrub, which is obscuring my light. Only a small area is kept under control for the use of his holiday visitors”.
This situation was assessed by one of the Enforcement Officers but it was not considered that the appearance of the ground justified action under Section 215 of the Town and Country Planning Act 1990 requiring the site to be cleared of undergrowth.
The most recent application approved in March 2000 was for alterations and extensions to form living room, utility room, w.c. and boiler room and retention of relocated shed.
At the beginning of 2001, the Local Planning Authority began to receive what was the first of a series of letters alleging breaches of planning control at Tideways Cottage. These have been directed at the Development Control Section, the AONB Project Office and the Local Member for the area. The alleged breaches are as follows:
1. Enlargement of the domestic garden.
2. Formation of a rubble driveway across the land.
3. Construction of shed not in accordance with the approved plans.
4. Construction of other outbuildings without planning permission.
5. Erection of fences over 2 metres in height.
6. Formation of raised flower beds including fencing panels.
7. Failure to comply with landscape screening condition on 2000 planning consent.
To assist Members, I have identified on the attached plan the positions of each alleged breach within the site.
Before considering each of these alleged activities, Members should note that whilst the property does lie within the Area of Outstanding Natural Beauty and adjacent a Site of Special Scientific Interest, neither of these designations fundamentally exclude any development whatsoever. In that context the AONB designation is a further constraint on permitted development rights.
Correspondence with English Nature in March 2001 confirmed that the site lies outside the boundary of the SSSI and that there was no adverse impact on the SSSI from the loss of the small amount of reed bed.
1. Enlargement of the domestic
garden
In
a range of correspondence, it has been claimed that the garden area to Tideways
Cottage has been extended into a reed bed and rough grassland area with part of
the reed bed also being filled in. The
complainants have also provided several letters from a Planning Consultant supporting their contention that a breach
of planning permission has occurred.
The first letter contains the
following paragraph:
“In my opinion, not only does this extension to Tideways garden amount to development requiring planning permission but also the filling of the reed bed requires permission since it has become, effectively, a landfill site”.
A second letter from consultant asking Committee not to be influenced by fact works already taken place nor that costs of restoring land could be high.
A third letter from the consultant has been submitted and this is attached as an appendix to this report. The Local Councillor for this area has been presented with four letters expressing concerns about the activities on this site in the context of the designation of the locality as part of the Area of Outstanding Natural Beauty. Letters request reinstatement of area to its former condition by reduction in size of garden area, reinstatement of reed bed and removal of unauthorised sheds, fences and driveway.
The first fundamental step to answer this complaint is to identify the accepted extent of the domestic curtilage to Tideways Cottage and secondly, to assess the degree of works undertaken to that garden area and whether this constitute development requiring the formal consent of the Local Planning Authority. In seeking to identify the limits to the curtilage Members should note that when the change of use application to a restaurant was refused in 1983 it did refer to a plan showing ownership of the 0.38 hectare site. Subsequent to that, in 1986 the Local Planning Authority answered a letter with regards to the installation of a greenhouse on this site and in November 1996 a letter complaining about the state of the overgrown garden area to Tideways Cottage was dealt with by this department. Whether a change of use has taken place is a matter of weighing up the evidence available. I accept that ownership alone is not a conclusive issue. However, there is no physical separation within the land holding and it is clearly accepted that an element of the land was kept open and used as an amenity by occupants of the cottage. In previous correspondence from the complainant dated March 2001 it was acknowledged that Tideways Cottage had a limited sized garden when it was stated “What was a 5 metre square domestic garden seems to be in the process of being enlarged to the entire property boundary”.
Whilst certain people may seek to actively use all their curtilage by cultivating areas I do not believe that where an element is left to nature such an action should be seen as separating that piece of ground and putting it outside the curtilage.
Having assessed the evidence in the past it has been the judgement of Officers that Tideways Cottage had a large domestic curtilage and that the present owner is doing no more than recover that element of the garden which had become wild and overgrown. Having reviewed the information again I do not believe that this conclusion was unreasonable.
Turning to the second part of this question on whether or not a degree of landfilling has taken place which would require consent, I have observed that a section of the former reed bed has been filled in using rubble from building works on site with some degree of imported material. The area concerned is limited in extent and on that basis I do not consider that the degree of works undertaken are such that planning permission is required.
2. Formation of a rubble
driveway
In
the area adjacent the front boundary to Afton Thatch a driveway approximately 30m
long has been established capped with shingle.
Schedule
2 Part I, Development Within the Curtilage of a Dwelling House Class F permits
“the provision within the curtilage of a dwelling house of a hard surface for
any purpose incidental to the enjoyment of the dwelling house as such”. It is my view that the occupants of Tideways
Cottage have not exceeded any Permitted Development Rights in the formation of
this driveway.
3. Erection of a shed which
does not accord with the approved plans
It has been claimed that the relocated shed granted planning permission as part of the approval in March 2000 has been built higher than the dimensions shown on the approved plan. This building has been measured and it does stand 0.3m off the ground at the front. However, I am of the opinion that any deviation from the approved scheme is of a minor nature and whilst the owner can be invited to regularise the situation it is unlikely to lead to the Local Planning Authority taking any action against the property owner concerned if such an application is not forthcoming.
4. Construction of other
outbuildings without planning permission
Within
the property there is also a small greenhouse in the middle of the central
raised bed feature as well as a smaller shed and a log store in the vicinity of
the relocated shed close to the NE boundary.
Neither of the smaller buildings require the formal consent of the LPA
as they fall within the householder permitted development rights (even within
the AONB locate).
The original log store exceeded
these limits and in February 2001 owner was advised of this and in the
following month agreed to reduce it in size so that it came under the 10 cubic
metre limit. A section of roof
has been stripped of tiles leaving the roof timbers in place. I have some concerns that this limited work
is not sufficient to remove beyond doubt the question whether this structure
benefits from permitted development or not.
Consequently, I believe that the owner should be advised to remove the
roof timbers, therefore putting the issue beyond doubt.
5. Erection of fencing
Concerns
have been raised with regards to a series of fencing panels installed in the
central part of the land behind Tideways Cottage and also the height of a fence
on the boundary between Tideways and the adjoining property to the south east
which is known as Afton Thatch. The
fencing panels in the centre of the site are no more than two metres in height
whilst the fencing sections on the boundary to Afton Thatch are 2.1 metres in
height. Schedule 2 Part 2 (Minor
Operations) of the Town and Country Planning (General Permitted Development)
Order 1995 allows fences, walls or other means of enclosure providing they do
not exceed two metres above ground level.
This Right exists on all land irrespective of whether or not it lies
within a domestic curtilage. The
fencing panels in the centre of the site are not higher than two metres and
whilst the boundary fencing is just above that level, given its distance away
from the adjoining property and consequently its minimal adverse impact on the
amenities of that property, I do not believe the matter should be taken
further.
6. Raised flowerbeds
In the centre of the site a paved area has been created incorporating raised flower beds with angled fencing panels and trellis panels. I consider this feature to be incidental to the enjoyment of the residential property.
7. Failure to comply with
Landscape Screening Condition
When the extension and relocation of the shed was approved in March 2000 a landscape screening condition was imposed. Details of some planting were submitted, but I can find no formal indication on file that these were accepted. Nevertheless, the owner has undertaken some blackthorn planting on the boundary to the cycle track. Some of this has taken and is now approximately one metre in height, whilst other areas have died back. It is evident on site that replanting has taken place on this boundary. Having assessed the views into the site from the surrounding area, I do not believe it would be appropriate to totally screen the site, but I do consider that in addition to the blackthorn, a number of individual trees should be planted on this boundary with additional trees planted to enhance the screening of the garden shed which was also approved as part of the application in March 2000. Clearly, such planting could not take place until the coming planting season which does not start until October.
Policy Background
PPG18,
Enforcing Planning Control, gives guidance in terms of the approach to be
taken. This indicates the decisive
issue is “whether the breach of control unacceptably affects public amenity or
the existing use of land and buildings meriting protection in the public
interest”. Paragraph 18 on Unauthorised
Development by Private Householders concludes as follows: “In considering
whether it is expedient to take enforcement action against development carried
out in excess of the permission granted by the GDO, the LPA should have full
regard to what would have been permitted if the development had been carried
out in strict accordance with the relevant provisions. LPA’s should not normally take enforcement
action in order to remedy only a slight variation in excess of what would have
been permitted by virtue of the GDO provisions”.
None.
I consider the first fundamental
question to address is whether or not the domestic curtilage of Tideways
Cottage has been extended. Once this
question is resolved some of the other factors relating to the householder’s
ability to exercise domestic permitted development rights with their curtilages
automatically fall into place. The
Planning Consultant is indicating a belief that the land ownership associated
with Tideways Cottage should be divided up between a relatively small domestic
curtilage and another area. From
the evidence to hand which includes both the planning history and several
visits to the site I consider that the current occupants have simply been
clearing an element of the garden area that has formerly been wild. The fact that a section of the garden has
not been laid down to lawn does not on its own render it incapable of being
included within part of the domestic curtilage of a property. Nor do I agree
with the interpretation that a reed bed could not be part of a domestic
curtilage. Such a feature could provide
a ‘visual amenity’. In terms of the levelling operations that have been
undertaken I consider these to be minor in nature and indeed not uncommon to
what many householders would undertake.
On balance, I do not believe that the degree of infilling reaches the
level that would require the consent of the Local Planning Authority. In making this judgement I am conscious of
the landscape designations for the area and on the basis that the Council accepts
the extent of the curtilage of the property then these works can be undertaken
notwithstanding what may be considered by certain parties to be detrimental to
its character. In terms of setting a
precedent, each case must be taken on its own merits.
I also accept that there are certain minor variations which exceed both the permitted height of the shed and the boundary fence. Neither structure does, I believe, harm the amenities of any adjoining property nor of the wider area and on that basis, I see no reason to take the matter further. Members could invite the property owner to submit application seeking to regularise the situation but given the circumstances outlined above I believe that this would be unnecessary.
Concerning the driveway, planter box and central fence section I also consider that these have been installed by the property owner benefiting from their Permitted Development Rights.
Regarding the log store, I believe that property owner should be advised that further work is required to this building to reduce it to within what would be accepted as permitted development. Concerning the landscaping, I acknowledge property owner has undertaken certain planting and I believe that this should be enhanced specifically through the planting of a number of individual trees breaking up views into the site rather than creating a total barrier.
In assessing this case I believe the question of proportionality should also come into play. In that context, whilst the complainant has rights I believe that the occupants of Tideways Cottage also have rights and I believe the matter can best be summed up by quoting from my letter to the complainant of September 2001. “In conclusion, it appears to me that the owners of Tideways Cottage have sought to benefit from their Householder Permitted Development Rights which can be exercised without any consideration of the impact in terms of loss of views …….. Whilst they may appear to have exceeded these rights to a minor extent, I do not believe the circumstances warrant the Local Planning Authority taking the matter further. Equally, whilst I acknowledge they have exceeded the height of the shed beyond that originally approved, I do not consider that this is so significant, that the Local Authority would wish to take the matter further if no plan is submitted to regularise the situation. Whilst I appreciate this is not the reply that you would wish, I would remind you that your desire to maintain your views of the estuary ………. are no different from those rights which the adjoining property owner is seeking to exercise in terms of enjoying the benefits of their own residential property.”
Given the circumstances as outlined above I believe that Members should note this report and adopt Options 1, 2, 3, 7 and 8 outlined above.
Recommendation
1.
To accept that the works within the grounds of Tideways Cottage have been
carried out within its domestic curtilage and that the limited infill
undertaken did not constitute development sufficient to require the submission
of a formal planning application.
2.
To note the variations with regards to the height of the approved shed and the
northern boundary fence exceed the approved or permitted development right
allowance, but that the variations concerned are of a minor nature and that the
situation should be accepted as it presently exists.
3.
To acknowledge that the installation of the driveway, raised flowerbeds and the
central fencing screen falls within the allowances granted under the Town and
Country Planning (General Permitted Development) Order 1995.
7.That
the landowner be advised that further work is required to the log store. Specifically, the removal of the roof
timbers before the Local Planning Authority will accept that the remaining roof
log store structure would fall within the limitations set in the permitted
development rights.
8.To
advise the landowner that additional planting is required to the boundary to
the cycle track and in to the vicinity of the garden shed with the planting to
take the form of individual trees of a number and species to be agreed in
advance with the Local Planning Authority and with the planting to take place
within the next planting season (October 2002 to April 2003).