Simmonds says

An inspector has issued a certificate of lawfulness for ‘the construction of walls, pillars and gates as means of enclosure’ in leafy Surrey after considering the appeal in the context of relevant case law (DCS Number 400-035-334).

The inspector made it clear, firstly, that the planning merits of the development were not relevant and that her decision rested on the facts of the case, on relevant planning law and judicial authority. She recorded that under Schedule 2, Part 2, Class A, paragraph A.1 of the GPDO the erection of a gate, fence, wall, or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic which is more than 1 metre above ground level is not permitted development. 

It was common ground that the height of the walls, piers and gates were in excess of 1m. Therefore, the inspector found that the appeal turned on whether or not the development was adjacent to a highway used by vehicular traffic. 

“The word ‘adjacent’ ”, the inspector said, “is not defined in the Act and the courts have held that legislators were not likely to have intended there to be a ‘one size fits all approach’. Case law also clarifies that adjacent does not necessarily equate to something being ‘contiguous’ or ‘abutting’. Consequently, the position established by the courts is that the word ‘adjacent’ does not necessarily mean that the walls, gates and pillars in question have to be abutting or touching the highway. Indeed in the case of Simmonds v SSE and Rochdale MDC [1981] it was held that a fence higher that one metre and less than one metre from a footway to a highway did abut the highway.”

It was clear to the inspector that each situation has to be considered on its merits and a planning judgement needs to be made in each case. She observed that the dwelling was located some distance from the driveway entrance and the verge and landscaping extended alongside the road for some distance either side of the entrance, the verge being relatively generous at over 4m in width in places. The verge consisted of grass and mature landscaping, including some trees. She considered that these factors in combination meant that it was highly likely that when the mature landscaping was in full leaf the dwelling and other boundary treatments would be largely screened. In her judgement, the walls, gates and pillars were not perceived to form the means of enclosure and the boundary between the highway and private land. 

The inspector concluded, taking into account all of the above, as a matter of fact and degree and on the balance of probability, that the walls, gates and pillars were not adjacent to a highway used by vehicular traffic. Consequently, she ruled that they were permitted development under the provisions of Class A of Part 2, Schedule 2 of the GPDO.

The permitted development classes are set out at section 4.342 of DCP Online.