Appeal 6001677

The appeal is allowed and planning permission is granted for 2m high boundary fence to enclose private garden associated with operational [name] at [site address] in accordance with the terms of the application, [name]/2025/0152, and the plans numbered A301 revision 1, A302 revision 1, and A308 revision 3, subject to the following

The fence hereby permitted shall be removed within 28 days of the date of failure to meet any one of the requirements set out in i) to iv) below: i) Within 2 months of the date of this decision a scheme for the colour and finish of the fence shall have been submitted for the written approval of the local planning authority and the scheme shall include a timetable for its implementation. ii) If within 10 months of the date of this decision the local planning authority refuse to approve the scheme or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State. iii) If an appeal is made in pursuance of ii) above, that appeal shall have been finally determined and the submitted scheme shall have been approved by the Secretary of State. iv) The approved scheme shall have been carried out and completed in accordance with the approved timetable. Upon implementation of the approved scheme specified in this condition, that scheme shall thereafter be retained and maintained. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

At the time of my site visit, I observed that the fence had already been erected and I have determined the appeal on this basis. However, ‘retrospective’ as referred to in the application form and decision notice does not constitute an act of development. As such, I have amended the description in my decision to omit this wording.

The Amber Valley Borough Local Plan 2022 to 2040 (the Local Plan) was adopted on 2 March 2026. This now forms part of the statutory development plan and replaces policies of the Amber Valley Borough Local Plan (2006), and I have therefore had due regard to this in my decision. The Council has confirmed which policies are most relevant to the decision and both parties have been provided with the opportunity to make representations on these policies.

The main issue is the effect of the fence on the character and appearance of the area.

The appeal site relates to a large, detached property situated at the end of a small cul-de-sac of modern residential properties. [address] slopes downward away from [site address] , from which it is accessed, and it contains no formal footways. Prior to the erection of the fence, the appeal property featured a substantial grassed frontage extending up to the highway and following the curvature of the road. In contrast, the frontages of the other dwellings along [address] mostly comprise paved parking areas, with only limited soft landscaping. The narrow width of the highway, the limited building setbacks, and the close spacing and height of the dwellings, including those of 3 storeys, create a notably enclosed character to much of the street.

The erection of the fence has reduced some of the openness previously provided by the green space at the front of the appeal property. Nevertheless, views remain across this area, particularly from the higher sections of the road. The substantial tree within the garden can still be appreciated and the dwellings continue to form the principal visual elements within the street scene due to their scale and positioning. The sloping topography, combined with the existing boundary fence alongside No 1, results in only a limited portion of the new fence being visible from the junction of [address] and [site address] , with the majority of the built form still clearly perceptible.

Although the open, green character at the front of the appeal property has inevitably been diminished, its contribution to the wider street scene was confined to the lower end of [address], serving only a limited number of dwellings. Planning permission has previously been granted for a 1.5‐metre‐high fence in a similar position. Accordingly, the openness provided by the green area would already have been lost under the approved scheme. Whilst the current proposal exceeds that height, the increase does not unduly dominate the street scene given the enclosed character and the strong visual presence of the surrounding built form.

The slight setback from the highway, together with the absence of a footway, ensures that the fence does not appear visually dominant to users of the road. Whilst weathering has reduced its visual prominence, the appellant has confirmed that the fence can be finished in a dark colour, as required by the previous permission. This would assist in assimilating the structure into the street scene and would be consistent with the appearance of many other fences within the locality.

I conclude that the fence does not cause harm to the character or appearance of the area. The development therefore complies with Local Plan Policy EN15 which seeks to ensure that development creates high quality places that reflect the local character and contribute to the local and distinctive sense of place.

Interested parties have expressed concerns in relation to highway safety. Whilst the fence may reduce visibility to road uses at the lower section of [address], given that it serves a limited number of properties, the number of vehicle movements and speeds are likely to be low. Whilst there are no footways, the layout of the road as a shared space would likely result in drivers exercising more caution. The Council has not raised any objections in relation to this matter, and I see no reason to reach a different conclusion. Concerns have also been raised in respect of the use of the property, however that is outside the scope of this appeal which relates solely to the erection of a fence. These matters do not therefore lead me to an alternative conclusion on the main issue.

I have not included the standard time limit condition as the development has already taken place. A condition is imposed to ensure that a scheme for the colour and finish of the fence is submitted, approved and implemented, to make the development acceptable in planning terms. Whilst the appellant has agreed that the fence can be finished in a dark recessive colour, this wording would not be sufficiently precise and therefore further details must be agreed. There is a strict timetable for the submission of the details, because permission is being granted retrospectively, and so it is not possible to use a negatively worded condition to secure the approval and implementation of the colour and finish of the fence before the development takes place. The condition will ensure that the development can be enforced against, requiring the fence to be removed, if the required details are not submitted for approval within the period given by the condition, or if the details are not approved by the local planning authority or the Secretary of State on appeal, or if the details are approved but not implemented in accordance with an approved timetable.

For the above reasons, having had regard to the development plan as a whole, I conclude that the appeal should be allowed.