In Cut down to size we reported an appeal case in which an inspector refused to sanction the retention of a fence which had been reduced to 2m in height, pointing out that permitted development rights do not apply retrospectively. In a more recent case, on the other hand, an inspector has granted permission for the retention of a fence on condition that it is reduced in height to bring it in line with permitted development limits (DCS Number 400-031-260).
At first sight, these two decisions appear to be at odds with each other. A close reading of DCS Number 400-031-260, however, reveals that the inspector in the second case might simply have taken a more pragmatic view of things. Importantly, he recognises at the outset that “At around 2 m high,” [the fence is adjacent to a highway] “the fence exceeds the permitted height limit. Relevant case law makes it clear that in such instances the whole development is unauthorised, not just that part in excess of the GPDO limits”. Nonetheless, he acknowledges that “At s173(4), the Act …. provides for remedying the breach by making development comply with the terms, including conditions and limitations, of any planning permission granted in respect of the land. This includes where planning permission is granted by the GPDO. …… Therefore, reducing the fence height to no more than 1m would bring it within the limit of what would otherwise (Blog’s emphasis) be granted planning permission by the GPDO Part 2, Class A.”
Perhaps the point to note is that nowhere in his decision does the second inspector say that, through a reduction in height, the fence would become permitted development. He does accept, however, that “…erection of a similar means of enclosure at 1m high represents a realistic fallback position after removal of the fence.” On this basis he concludes “Having regard to the fallback of what could be achieved as permitted development, reducing the fence to no more than 1m high therefore represents an obvious alternative which would overcome the planning difficulties at less cost and disruption than total removal.” Accordingly, he varied the enforcement notice to require reduction of the fence to not exceeding one metre above ground level.
The permitted development classes are set out at section 4.342 of DCP Online.