Planning Permission Required?

12 Feb 2016
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United Kingdom
I have had a visit from the planners at home following a complaint.

It appears that my neighbour (the complainant) is a former colleague / friend with the chief planning officer at the council, and I consider that the action is really being taken under the
Old Pals Act!

We live on a steep site and our 1970's house is built into the hillside, it is 3 storey at the front and single storey at the rear, the slope continues upwards and is well above the roof in the rear garden. Its steep! you should try mowing the grass!

The garden had 2 terraces, a small paved terrace at the rear of the house and a grass terrace 4 metres back from the house around 2 metres above, from there the site slopes up at about 1 in 5 (a 4x4 couldn't drive up it). During 2015 we dug out the lower terrace and built a 2m high retaining wall, paving the upper previously grass terrace. The site slopes slightly from right down to left and we have built up the left hand side, which is what has upset the neighbours! The terrace is at the same height as the boundary fence, which sounds worse than it actually is as due to the steep slope on the site in both gardens, there isn't any privacy between the gardens and the complainant neighbour can see into our house just as well as we can see into theirs.

The planners visited and clearly had an agenda! They needed to help out their mate and tried every which way to find a reason for me to change the terrace.

1) The terrace invaded the neighbours privacy, I defended by pointing out the neighbour also had several terraces, with the same view into our garden. Is one neighbour entitled to more privacy than another? When I enquired about the legitimacy of the neighbours terraces I was told they were built more than 4 years ago and therefore could not be challenged.

2) The terrace was more than 300mm above original ground level, I defended by pointing out that the terrace was already in place, and that we have paved following removal of the original turf. There is a bush that we have clearly paved around which proved original levels. The retaining wall was built to face the existing sand stone ridge on which the site stands following the removal of the former soil bank.

3) You have used a mini digger to excavate and therefore this is engineering works and you therefore need planning permission for the works.

The council have written a letter to me threatening to take enforcement action and intimating that the wall will need to be demolished in its entirety on the basis that the works were 'engineering works' and therefore needed planning permission under Section 55 of T & C Planning Act.

They have asked me to reply in detail how I plan to defend the enforcement notice they are saying they will serve. My view is that if I tell them my defence they will write the notice (if any) to take account of my defence.

I note that the planners have not sought to take any action based upon the terrace being more than 300mm above ground level or on the basis of privacy.

The part on which I would like advice is on the appeal to the notice that the council may serve.

I consider that section 55 of T&CP Act 1990 subsection 2, paragraph d) would be a suitable defence to the proposed action by the council

S 55 Meaning of “development” and “new development”.

(1)Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A)For the purposes of this Act “building operations” includes—
(a)demolition of buildings;
(c)structural alterations of or additions to buildings; and
(d)other operations normally undertaken by a person carrying on business as a builder.

(2)The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

(d)the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;
I wonder if anyone is able to offer any advice as to whether this would be a suitable defence that development work has not taken place? I consider a paved terrace is incidental to the enjoyment of the dwellinghouse.

Do you think that the planners will serve a notice on the above basis?

Am I correct in thinking that the planners have one shot with an enforcement notice?
ie if they don't get the first one correct then they are unable to issue another?

I genuinely consider that having read the act, before we started works, that we did not need permission, and consider that the planners are chancing their arm to help out their mate under the Old Pals Act. Quite honestly I feel bullied by the planners who should provide an unbiased service to all residents of the borough.

My current view is that I should tell the planners to crack on and serve their notice, but I just wanted to make sure I am in the right ball park before I do.

I appreciate any help you are able to provide.

Thank you.
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I doubt that extract helps your case, as what you have done still amounts to 'engineering operations'.

However, the fact that the council suggests it is engineering operations solely by virtue of the fact that you used a mini digger, suggests that they are unsure of their grounds (eg what if you had dug it by hand!?).

Personally I would ignore their threats and see what happens. The fact that they have asked you to provide your case also shows that they don't feel 100% confident. The proper time to put your argument would be at an appeal.

LPAs have to be very careful about issuing Enforcement Notices, as there can be cost implications if they loose.
The general principle (reiterated by the NPPG) is that enforcement action should only be taken where the development does real harm 'in planning terms'. As you say, you could have dug the site out by hand. I cannot see that the LA have much of a case here, but I think a chat with (and possibly stern letter from) a planning lawyer could put the matter to rest.
I would at this stage either just ignore the letter or just write a curt letter back saying;
That to consider this as engineering works on the basis of the machinery used is ridiculous and that, for what actually comprises a simple structure, and is clearly not development, that you believe the PO to be using the semantics of the T & CP act on behalf of a vexatious neighbour, who you believe has a personal relationship with the planning officer. and that you will defend any enforcement order via appeal and court if necessary.
Copy in your MP and local councillor.
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my thought
dont give "a detailed "answer as they request just a very sparse answer as they are "digging "so dont give them amunition

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