SUTTON
(15/00525/COU)
44 Greenhow Close, Kingston Upon Hull, HU8 9PQ,
Change of use of amenity land to private enclosed garden (Retrospective application).
Mr N MARROW
SUMMARY
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Retention of fencing to enclose amenity land and create garden
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Objections received.
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Recommended for conditional approval.
SITE
The application site forms part of a wider open area of grass that is crossed and surrounded
by various footpaths. The site is accessed from the north and south and is also accessed off
Greenhow Close and Hovingham Close. The fencing has been erected and has taken in the
verge that ran alongside the southern garden boundary of No. 44 and it also takes in the
tarmaced footpath that runs east/west across the top of the grassed area
PROPOSAL
Change of use of amenity land to private enclosed garden (Retrospective application).
PLANNING HISTORY
None relevant
REPRESENTATIONS
Humberside Police
Consults expired 21.05.2015
Parks and Cemeteries
Consults expired 21.05.2015
Highways Development Control
Consults expired 14.05.2015
3 emails of objections/comments received raising the following:1. The works have already been carried out.
2. No issues with the changes as they stand, providing no further garden extensions take
place.
3. How can a public footpath be lost or given away?
4. If planning permission has previously been granted, then the proposed development
would require a footpath, bridleway or restricted byway to be stopped up or diverted to
allow the development to take place. Has this been undertaken? Or have the local
authority used its powers under section 257 of the Town and Country Planning Act 1990
to do so.
5. Alternatively, following the amendment of Section 257 by the Growth and Infrastructure
Act 2013, an order may be made in anticipation of planning permission. However, an
order made in advance of planning permission cannot be confirmed by either the
authority or the Secretary of State until that permission has been granted.
6. Also as it is up to the local authority to decide whether the proposals for stopping up or
diversion are acceptable you should not presume that the granting of planning permission
will automatically be followed by the making of the order, or the confirmation of an order
made in advance of permission.
7. Consequently, although I am aware that the Government encourages applicants and
local authorities to consider rights of way issues at an early stage of the planning
process, to minimise the overall impact of the proposal on the right of way, and reduce
the risk of delay at a later stage. To my knowledge this has not been undertaken under
this new regulation as this may be an old application.
8. As such my objection is to the removal by encompassing a public footpath and right of
way to which no legal process appears to have been followed.
9. Of course if a local authority makes an order and any objections to it cannot be resolved,
the local authority has to refer it to the Secretary of State for determination. These are
determined by the Planning Inspectorate on behalf of the Secretary of State.
10. If this then becomes a factual logical process, how can the Authority defend the costs of
such action, especially if this outweighs the cost of selling and purchasing any piece of
amenity land let alone a footway.
11. Also have or do the Ramblers Association approve this proposal, as you are aware they
keep an active record date and photographs of walked routes.
APPLICANT’S CASE
The applicant has confirmed (verbally) the following:1. The fence was erected to prevent people throwing things into his garden, a problem that
was being experienced .
2. The garden is used as an external play area for the child-minding that takes place, he
wanted to create a buffer between the children’s play area and the fence.
3. The applicant is willing to provide a new footpath link outside of the fenced area to
replace the lost footpath, revised plans to be submitted.
PLANNING FRAMEWORK
Joint Structure Plan (June 2005): None directly relevant
Local Plan (May 2000 - saved policies 27 September 2007): Identified as an existing area of predominantly housing and ancillary uses to be safeguarded
NE2 – Protect Urban Greenspace below 0.25Ha.
BE1 – Design must be acceptable
BE5 – Allow Appropriate Extensions or Alterations
BE12 – Minimise crime
M29 – Access, Parking, etc.
Other Material Considerations:National Planning Policy Framework
None directly relevant
Safer Places- the Planning System and Crime Prevention (ODPM/Home Office, 2003)
Where proposed development would undermine crime prevention or the promotion of
community safety and the concerns are relevant to land use planning, the application could
be refused planning permission where refusal is consistent with the development plan
PLANNING APPRAISAL
The development has already taken place and in effect the applicant has enlarged his
garden by moving his fence line to the south across a verge, a path and smaller strip of
grass. The applicant owns the whole area of open space but the application only affects the
area immediately to the south of his garden. The route is not part of a Public Right of Way
nor is it adopted highway, therefore the procedures identified by one of the objectors is not
relevant. Also the land was not owned by Hull City Council.
The fencing erected is not unusual in the area and on the periphery of this site, the design is
therefore acceptable.
The main issue is the loss of the footpath link that ran east/west along the side boundary of
No. 44. This link offered a more commodious route from those using the Greenhow Close
link, to gain access to the main north/south route, the loss of this route reduces the practical
value of this site.
It is considered that the lost footpath link should be replaced. A new footpath should not
create the same problems for the occupants of No. 44 as previously, since the enlarged
garden now has a ‘buffer’ between the fence and garden play area. A new footpath, whilst
not in the same position would offer the same practical linkages only a short distance from
where the original footpath was located and would discourage the creation of desire lines
cutting across the grass. The general amenity for the area should therefore be unaffected.
The revised fence line, with a new footpath, should not create any additional areas that might
lead to an increase in crime or disorder.
The loss of this small area of amenity space is considered acceptable with the character of
the remainder of the site unaffected.
The enclosure of part of this piece of land would not lead to a significant impact on the
amenity of any of the neighbouring properties. The garden use would be compatible with the
residential nature of the area.
Equalities
This proposal has been considered against the duty of the Council to consider equality
issues. This development is considered to comply with these requirements if a replacement
footpath is secured.
Biodiversity
Given the details of the proposal and the characteristics of the site it is considered that there
would be no adverse impact on areas or species of ecological significance due to the low
ecological value of the grassed area.
Crime and Disorder
Given the nature of the proposal it is considered that there would not be, or likely to be, an
increase in crime or disorder or the potential for such an increase due to the similarities with
the previous situation on the ground and the improved ‘buffer’ distances within the garden.
Energy efficiency and renewables
No implications.
Flood Risk
No implications.
Design and Conservation
Not in a Conservation Area and no heritage assets affected.
Conclusion
The area of land does not constitute a unique resource within the vicinity and the enclosure
of this piece of land would not be likely to harm the amenity of any of the neighbouring
properties or the general amenity of the area, subject to a replacement footpath link being
secured complying with Local Plan policies NE2 and M29.
DMPO Article 31 Statement
The local planning authority have worked with the applicant in a positive and proactive
manner based on seeking solutions to problems arising in relation to dealing with the
planning application in the following way(s):
Engaging in pre-application discussions with the applicants; and
Discussing potential solutions with the applicants during the processing of the application.
RECOMMENDATION
That the application be approved subject to the following conditions: 1) Within 3 months of the date of this approval a replacement footpath running
parallel to the southern boundary shall be provided. In accordance with written
details to be submitted within 1 month of the date of this approval, the approved
footpath shall be retained and available for use by the public as approved
thereafter (in the interests of amenity and public safety and to comply with policy
M29 of the Local Plan).