Appeal 6004490

The appeal is allowed and planning permission is granted for change of use of existing amenity land to residential garden at [site address] in accordance with the terms of the application, ref 07/25/0881/F, and the plans submitted with it, subject to the following conditions:

Within three months of the date of this decision, details of a soft landscaping scheme for the land between the fence and the footpath edge shall be submitted to the local planning authority for their approval in writing. The planting shall be carried out in accordance with the approved details in the first available planting season following its approval in writing.

If, within a period of five years from the date of planting any tree or plant forming the landscaping scheme or its replacement, any tree or plant is removed, uprooted, destroyed, dies or becomes, in the opinion of the local planning authority, seriously damaged or defective, another tree or plant of the same species as that originally planted shall be planted in the same place.

The description of development used above is taken from the Council’s decision notice, since that more concisely describes the development. I have removed reference to it being retrospective since that is not a description of development, although I observed that the development has already been carried out.

The main issues are the effect of the development on: the character and appearance of the area, and; the living conditions of surrounding properties with particular regard to outlook.

[address] encompasses properties of varying character and design following a curved spinal route with several short cul de sacs extending from it. The layout of properties in this area varies, including those set perpendicular to the street, and I observed the boundary treatments of properties are similarly varied. On corner plots, where rear gardens sit close to the edge of the footpath, I observed some fences and solid walls of varying distance from the footpath edge, as well as grass verges such as those around no.351 and the junction of [address]. The appeal site lies at the junction of one of the cul de sacs and the proposal relates to a strip of land which extends along the opening part of the cul-de-sac.

Policy ORC3 of the Broxbourne Local Plan adopted 2020 (the BLP) contains a presumption against the loss of amenity spaces unless that space no longer provides an amenity to the local area and/or a visual break within the local area. The development has resulted in the loss of a grass verge which previously existed along the footpath’s edge. There is disagreement between the main parties about whether trees existed on the site, however, even if they did, I do not have details of the circumstances under which they were removed or likelihood of them being reinstated. There is otherwise little to suggest that this space provided amenity to the local area and, given its size and set back from the main arterial route of [address], its value as a visual break in the local area appears to have been limited. Based on the evidence before me the development is not in conflict with Policy ORC3.

Given the varied character of the wider area and fences elsewhere, the development does not appear harmful to the overall character of the area and there remains some sense of openness around the junction given the open character to the front of no.327. Neither does its scale prevent visibility into the cul de sac behind or undermine the legibility of the area. While the remaining space between the fencing and the footpath edge is limited, some planting, even if low level, would assist in softening the appearance of the fencing.

I have had regard to the appeal decisions evidenced by the Council. In the case of no.281 Perrysfield Road1, the Inspectors note the site’s importance in providing visual relief to that cul de sac given its dominance by parking areas. In the case of no.2792 the Inspectors concerns related to the enclosure of land to the front of the property, rather than the side, and land adjacent to a well-used footpath link in the estate. In the appeal at no.1043, the Inspector also noted the positive contribution of the former open space in creating a visual break from the hard landscaping. I also observed that frontage to occupy a considerable proportion of the main [address] frontage. While these decisions indicate the pressures on these pockets of land for enclosure, the circumstances and visual effects of those developments were notably different to that before me. Despite these findings, however, neither have I relied upon the circumstances at no.[address] evidenced by the appellant, since that is a larger area of land, in a different position and which is able to accommodate notable planting at the footpath edge.

In conclusion on this main issue, the development is acceptable in terms of its effects on the character and appearance of the area. It is compliant with Policy 1 APP/W1905/W/19/3230859 and APP/W1905/A/14/2221953 2 APP/W1905/C/11/2158515, APP/W1905/A/11/2156414 and APP/W1905/C/22/3294924 3 APP/W1905/W/22/3303350 ORC3 set out above, as well as policies DSC1 and DSC2 of the BLP which relate to character and high standards of design.

Policy EQ1 of the BLP requires development to avoid detrimental impacts on the amenities enjoyed by the occupiers of neighbouring properties in terms of factors including outlook. The fence and enclosure of the land will undoubtedly be seen in views from surrounding properties. However, given its scale and relationship to those nearest properties, it is not apparent that the fence causes harm to outlook or creates an unacceptable sense of enclosure. In turn its impacts are not detrimental to the overall amenities of those occupiers and the development is compliant with Policy EQ1.

I am also aware of concerns relating to access to pipework beneath the site. However this is a matter to be resolved outside the scope of this appeal and I have no strong reason to doubt that a suitable solution can be achieved.

The Council have suggested conditions which it considers would be appropriate if planning permission were granted and I have considered these in light of the relevant tests for conditions. To ensure appropriate treatment of the strip of land between the fence and the edge of the footway, and for reasons of visual amenity, it is necessary to secure details of planting for that area and its retention for a period to ensure it becomes established. I am aware of concerns raised in respect of maintenance, however I am not convinced that this would prevent the requirements of the condition from being met.

Since the development has been carried out, it is not necessary to list the approved drawings. Nor is it reasonable to condition a build-over agreement with [name], since that relates to a different regulatory requirement. The appellant also refers to conditions relating to the colour of the fencing and a restriction on further development. However, I do not consider these to be either necessary or reasonable here.

For the reasons given, the development complies with the development plan and the appeal is allowed.