Retrospective Planning Permission for Raised Decking

[tony1851]

The view has been taken previously that all parts of a deck need to be 300mm or less above ground level - at all points. This approach means decks which are higher than 300mm at some points would not be PD. Some councils apply this approach and it has been taken by Inspectors at appeal- see this decision-

https://acp.planninginspectorate.gov.uk/ViewCase.aspx?caseid=2175602

Quote-

Paragraph I of Part 1 states that ‘for the purposes of Part 1 – “raised” in relation to a platform means a platform with a height greater than 300mm’. That statement is not qualified or linked back to Article 1(3). I interpret paragraphs E.1(g) and I as meaning that a platform would not be PD if its height would exceed 300mm at any point in relation to adjoining ground. Adding weight to that assessment, Article 1(3) requires consideration of the context. Part 1 of the GPDO was amended in 2008 to, amongst other matters, expressly remove raised platforms from PD. It would defeat the purpose of inserting E.1(g) if platforms could be constructed to any height whatsoever, in order to level sloping land, so long as they are only 300mm above the highest part of the adjacent surface.

Other decisions take the contrary view- it's not really pinned down for certain in the legislation or the technical guidance so remains up for discussion (despite this restriction coming into force in 2008!)

So far as I can see from a quick check on the Planning Jungle site, this is one of 4 appeal cases concerning the height of decking relative to natural ground level.
The inspector in this one is in a minority, as the other three supports the OPs case. I think the 'context' argument the inspector brings in is spurious, as I can't see that qualification in the pd rules.
This is the sort of problem which really needs a judicial ruling to produce some certainty.
In the meantime - and as the decking is already there - the OP is probably best leaving matters with the council, to see if they would be willing to take the risk of Enforcement.

 

[tony1851]

If the gradient was less then I think what people have been stating is correct but in our case I think they are asking for planning.

You are leaving too much discretion with the council. Under what authority or rule would they determine whether or not "the gradient was less"? What difference of level would they say is material?

 

[catlad]

Can I suggest you stop contacting the council and enjoy
christmas they don't seem to have anything you need to worry about. If they do as Tony say's they will be in touch.

 

[LukeB123]

They agree that the "structure" is within permitted development of the height restrictions (Thanks you very much) BUT (and there is always a but) they feel it still requires planning permission because it has had an "impact on the context given the height of the structure". They say that if we applied for planning permission then we would "probable" be granted it because there is no impact on privacy and it is in the middle of our garden.

This is rubbish. Firstly if they agree that the decking is permitted development (which I agree with following Tonys view) than that's the end of the matter. It's permitted regardless if it has a detrimental impact or not.

Following that (which really should be it) you quote from them saying that is has an "impact on the context given the height of the structure" and then they go on to say PP would likely be granted because "there is no impact on privacy and it is in the middle of our garden".

If it has no impact on privacy and probably going to get permission, they shouldn't be asking you to apply for planning permission (they shouldn't anyway if its permitted development!!)

I wouldn't speak to the department; it seems to be leading to confusion. Get them to email or write down a response for you - it's far more tangible and useful if it ever goes to an appeal. Put something in writing to the effect of:

"The structure is less than 300mm from the highest ground level. Following on from our discussion of the XX of December you agreed with this and confirmed it was permitted development. Thus to avoid any further confusion, can you please detail why planning permission is required. (not why I should submit a planning application). Please refer to the specific paragraph(s) within the GPDO (2015) in response. For information I am relying on Class E which covers the erection of buildings no higher than 300mm from the highest adjacent land level as confirmed with you previously."

Also on the fence they are now agreeing with us that the fence is on our land (which is a major change of heart from the letter) but they are now saying it is adjacent to the highway so needs to be no more than 1m high. We pointed out the fact that the fence is over 1.5m back from the path and behind a row of trees and their response was, "what trees, oh there are some bushes on the picture" (there are 5 trees about 60ft high in front of the fence).

This one is a little different. In the GPDO there is not a specific measurement when saying something is 'adjacent to the highway' (Part 2, Minor Operations, Class A(1)) USUALLY (from general precedent / appeals), the standard measurement is considered to be 2 metres away from the highway. It can be argued that sometimes it can be less or more depending on the site circumstances.

In this instance you can:

- Try to argue that the fence is not "adjacent to the highway" - try to go down the line of there is well established tree line that already, in effect creates a means of enclosure and that no highway visibility is effected (if it isn't???) also that it would not be expedient to move the fence 500mm further back to achieve no benefit on highway safety (again is it doesn't??)

- Move the fence back 500mm so it is no longer "adjacent" and allowed up to 2m in height
- Reduce the fence to 1m in height maximum
- Apply for Planning Permission.

Sorry for the long reply..