Change of Use from Amenity to Residential - HELP!!

[LewisPho2u]

I have been in talks with Central Bedfordshire Council who believe that our land adjacent to our home is classed as amenity space. Our deeds and Land registry show it as our land, no mention of such amenity space.

I believed that it would be feasible to erect a new fence boundary to create a larger rear garden space, however, CBC are saying that we need to apply for a change of use planning application at the fee of £385!

Now, I don't mind paying the fee and completing necessary paperwork, but they are just stating that under planning laws this is the case - I for one cannot find any information regarding this and Taylor Wimpey are just pointing me towards CBC for further information.

Does anyone have any information regarding this specifically? We are only going to landscape the land to be used as a rear garden, not building on it.

Please see attached information which hopefully helps?!

 

[^woody^]

It looks like straightforward domestic curtilage land. I can't see how it can be amenity land - what information does the council have to support this?

 

[LewisPho2u]

This is the issue, they aren't supporting it with anything other than stating it falls within planning laws and amenity space on newer developments. I am awaiting further information from the planning officer, I feel that I have a right to fence the area as pictured which leaves some amenity space - it's just such a shady piece of legislation which I know nothing about - perhaps they are merely trying to make a bit of money in the hopes I just go straight to planning rather than seeking further advice or information. The local councillor has advised that he doesn't know about amenity space and also cannot get involved until an application is refused and goes to appeal.

 

[^woody^]

Could it be that the new estate has an open plan condition on the original planning permission or as a covenant on the house deeds?

In this case it is not strictly amenity land in its usual sense, but is classed as providing amenity more generally to the estate.

I've just re-read your OP, and you did use amenity space (and not land as I did) and so the council may be correct.

This is a common thing on new estates, and it can be many years before people start to enclose their gardens without permission, and only then can the amenity concept be lost and unenforceable.

 

[LewisPho2u]

I do sort of get that but I'm struggling to find any information regarding it, online or with my covenant or deeds?

 

[^woody^]

It will be on the original planning permission for the estate and/or plot. It may or may not be in the deeds

 

[LewisPho2u]

I have checked the original plans, there is nothing on there regarding land from the homes becoming amenity space, only the land in the middle (a green space with play area). I have seriously exhausted finding out any further information. I am awaiting an email from CBC today so I shall update you with their response.

Thanks for all of your help!

 

[^woody^]

There might be a more general permission for the estate or part of the estate. It may be titled differently depending on what the land was used for before the estate was built, but look for something like "Erection of x number of dwellings .....", and it will be a single outline permisison for all or part of the estate.

I do suspect that the council may be correct and it could well be amenity space via a planning condition on the whole estate. If this is so, then it could be a waste of time applying for a fence or wall as it would normally be refused. Over time people do start to add walls and fences and only then can it be implied that the garden is no longer part of the wider amenity space of the estate, and effectively precedents are set to make the enforcement of such a condition impossible. But it can take may years for this.

 

[LewisPho2u]

Council aren't budging on their original stance - which is fine, they have advised that I should get permission...

"We would expect there to be a portion of land remaining in the public realm, as shown on your diagram. And soft planting only on the public side. We would secure such planting by condition.


So in short, you need to apply for a change of use application with scale drawings showing exactly what you’re diagram shows (you can purchase a plan online and draw it on yourself). If you provide a planting diagram with plant/shrub/tree species then you may be able to avoid a planning condition. You also need a site location plan with your site outlined in red scale 1:1250, also available online here: https://www.planningportal.co.uk/homepage/4/buy_a_plan


The fee is £385. I have attached the form for you. Most of the questions are irrelevant as it’s a generic form.


In my informal opinion and without prejudice, I would recommend that planning permission be granted for your proposal. Please note that the application would be formally advertised and may attract public opposition and therefore, we can never be certain of the outcome of any application.


Please cite my name on the planning application form so that I can deal with it."

 

[^woody^]

I still can't see how you would require a change of use when the land is clearly part of the domestic curtilage and part of the planning unit of a domestic house.

You do really need to see the council's evidence to support their ascertion that the land would require a change of use - where is it recorded that this stretch of land is actually amenity land as opposed to just amenity space?

The council could be misdirecting themselves, and not understanding what land is what, and what planning conditions exist.

The council should have clear records available for you to view, with a plan showing the different useage of the different pieces of land.

But if you want to chance a planning application, be aware that with amenity space, any public comments carry more weight than with other types of planning application.

 

[wessex101]

This situation doesn't sound right to me. Amenity space is just a generic term for outside space associated with a property for the enjoyment of the occupants, a private garden is amenity space. From the aerial photo it just looks like a residential front garden so I cannot see where the change of use is coming from. Are they arguing that it is communal amenity space? but that just doesn't look right in this case. There would have to be documented proof somewhere that the front garden is classed as communal amenity space and as such is non-residential.

This has rather got me baffled so hopefully someone a lot cleverer will be along to give a more definitive anwser

 

[LewisPho2u]

This has been a headache from start to now... not even finished! They are stating that it is to do with Planning Law rather than Town & Country Planning Act. I'm in complete agreement that it is our land to do as we see fit - however, they are stating that with all new build plots, any green space is there as amenity land for others to enjoy looking at. Which my argument of allowing it to overgrow was rather frowned upon! I would have thought I could erect a fence as per plans without having planning and perhaps just use 'permitted development' as my plea?! What I don't want to do is to go ahead with the fencing and landscaping and being told that I have to remove it again.

 

[LewisPho2u]

Here is my Land Registry file

 

[LewisPho2u]

So the latest response from the senior planning officer:

"Please see word doc attached. Unfortunately, I don’t have the capacity to argue the case law so you may wish to employ a planning consultant.
The attached has been taken from the Development Control Practice Manual which is a planning resource only available by subscription."

 

[wessex101]

Well I'm still baffled but I looked up an old application I worked on a few years ago to remind myself of the terminology used.

My case was a grass verge on the edge of the highway outside of the homeowners existing fence but part of their demise on a newish housing estate. The grass verge was clearly meant to be part of the public domain as it was outside the fence and did contribute to the open nature of the estate. The homeowner wanted to enclose it within their garden.

The planners distinguished between "private" amenity space and "open" amenity space. Private being the enclosed garden and open being the grass verge, they stopped short of calling it public amenity space/ public open space as it was owned by the householder I assume. I do not know if these are official designations or just local interpretation.

They referred to National Planning Policy Framework paragraph 74 (not checked if this is still current) and some local planning policies. The national policy referred to playing fields etc. so I think they were stretching the point somewhat. We got it in the end but had to compromise by only taking half the verge which seemed fair.

Anyhoo, it looks like your planners are classing your front garden as "open" amenity space. This seems rather harsh to me as it clearly looks like your front garden and not part of the public domain, but it needs someone with considerably more expertise than me to advise. For instance could they take enforcement action if you planted a small hedge rather than erected a fence?

I hope you get it resolved and look forward to hearing the outcome.