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Considering replacing your garden fence wall or gates?

Springtime is a favourite time of year to attend to outdoor jobs in the garden, including replacing fencing or walls. The erection of a new fence, wall or gate, if these are adjacent to a highway, and even if you are replacing a higher existing hedge, could be problematic, if the new structure is to be higher than 1m permitted height.

If you want to erect a fence wall or gates over 1m high that are adjacent to a highway, unless you are replacing or repairing an existing structure with deemed or actual consent, you will need to get a specific planning permission.

The 1m height restriction is found in the General Permitted Development Order 2015 as set out in Class A of schedule 2 part 2 of the order under ‘minor operations’, which is a type of development that has the benefit of a deemed consent provided the fence, wall or gate complies with the limitations in the order. Fences, walls or gates that are not adjacent to the highway can normally be up to 2m high.  Generally speaking a ‘highway’ is a road over which the public has a right to pass with or without a vehicle.  Clearly this includes the ‘public highway’ to the front of a property, and other side boundaries that are adjacent to a highway as well, but it does not include a private driveway not used by the general public.

‘Adjacent to’ the highway has a more flexible meaning than highway.  ‘Adjacent to’ can mean ‘next to’ or ‘adjoining’ or ‘contiguous with’  or ‘close to’ or even ‘near’ which means  that most walls or fences running parallel to a highway will be restricted but the height restriction also captures the end parts of other boundary walls, fences or gates close to the highway.  Factors such as the proximity of the structure to the highway, and the impact on visibility and the safe use of the highway will be key factors in the eyes of the planning authority in applying the 1m height restriction.

Ironically, there is no equivalent height restriction in planning terms on garden hedges being over 1m, so if privacy is an issue you could consider planting a hedge along your boundaries to provide a solution that does not require planning consent. However, care should be taken in choosing the species of hedge to avoid the possible risk of the hedge infringing the ‘high hedges’ rules in part 8 if the Anti-social Behaviour Act 2003, which might apply if you allow an evergreen hedge to grow higher than 2m, if it creates a restriction on the available light to a neighbouring property.  All hedges that are planted next to public highway also carry maintenance obligations, as vegetation must not be allowed to grow in a way that overhangs the highway, contrary to s.154 of the Highways Act 1980.

There may be also be other planning conditions applicable to your property when it was first built, or restrictive covenants that also restrict any type of boundary treatment on your property which are often common on ‘open plan’ housing estates.  Therefore it is also worth checking your title deeds for any other restrictions to which you may be subject that could restrict you from erecting new boundary structures.  Further, and to be sure, check with your local planning authority to establish, whether there were any planning conditions imposed when your property was built or other planning constraints which might remove permitted development rights such as conservation areas or listed curtilage structures.

Finally it is also a good idea to be neighbourly and let your immediate neighbours know if you are planning to erect a new boundary structure that could affect them directly or indirectly. This could help avoid any unexpected issues arising that might impact on your relationship with your neighbours.

The above information is for guidance only and does not constitute specific legal advice. If you have a specific boundary problem please contact commprop@prettys.co.uk.

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