Nursery wins fight against 'ridiculous' council order to tear down 6ft privacy fence around playground due to 'single issue'

Daily Mail​

7 hours ago

A nursery that was at war with a 'ridiculous' council that had ordered to tear down a 6ft fence built to safeguard children has won its fight.
Imperial Day Nursery, in Westcliff-on-sea, had launched an appeal against Southend Council last year after it ruled that it must remove or reduce the height of a huge fence that towers at the front of the property.
An enforcement notice was issued by the local authority demanding it be ripped down or amended to a maximum height of 3.2ft within three months.
But now, bringing an end to a years-long feud, the nursery has been told it can keep its fencing as the Planning Inspectorate decided it was not 'prominent' or 'out of keeping' with the character of the local area and criticised the council for 'unreasonable' behaviour.
When MailOnline had visited last October, parents had expressed their fury at the council, accusing them of prioritising the 'aesthetics of the street' over the safety of their children.
But neighbours living on the residential street in the seaside suburb branded the fencing as 'terrible and unsightly' and wanted it torn down.
The nursery first became engulfed in the planning row in 2022 after a complaint was made regarding the structure which was erected without proper planning permissions in place.
Imperial Day Nursery then lodged a retrospective planning application, but the council rejected it, claiming it was 'visually prominent and stark' and 'out of keeping' with the surrounding area.
The nursery then stepped up its fight by appealing the council's enforcement action - which has led to a victory.
Andrew Walker, a planning officer within the Planning Inspectorate, reversed the council's decision after a site visit in which he ruled the fence and other structures could stay intact, EssexLive reported.
He stated in his decision: 'I do not find that either appeal scheme appears visually prominent, stark or materially out of keeping within the local context.
'No harm is caused to the character and appearance of the site, street scene or area.
'The degree of fencing upon the frontage under both schemes is reasonably necessary to separate the private residential section from the commercial nursery section.'
The nursery has also been granted a full award of costs against Southend City Council in addition to having the enforcement notice quashed and planning application granted.
The costs decision reads: 'The Planning Practice Guidance advises that costs may be awarded against a party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.
'The Council refused the planning application and issued the subsequent enforcement notice on the basis of a single main issue.
'Its case, which continued to be pursued in defending the ensuing appeals, was that the appeal developments significantly harmed the character and appearance of the site, the streetscene and the area more widely.
'I disagree with the Council on this matter of planning judgment. That would not by itself be a basis for a finding of unreasonable behaviour.
'However, the local presence of the very extensive and high close-boarded fencing serving the Essex County Bowling Club, with very long sections directly abutting the highway - quite close to the appeal property and on the same side of Imperial Avenue – does not appear to have been considered at all by the Council in coming to its view.
'There is certainly nothing in the officer reports (on each appeal scheme) which refers to it.
'Indeed, they say that 'The streetscene in this part of Imperial Avenue has a strong open character with low front boundary treatments…' To make that statement without mentioning, considering or assessing the very obvious and substantial nearby counterexample was both amiss and unreasonable.
'It seems to me that, had the single main issue in dispute been more properly assessed, there would have been no need for the appeals to have been made in the first place and that the appellant has been put to unnecessary expense.
'I therefore find that unreasonable behaviour resulting in unnecessary or wasted expense, as described in the Planning Practice Guidance, has been demonstrated and that full awards of costs are justified in respect of both appeals.'
Speaking to MailOnline outside the nursery, parents had previously told of how they felt safer with the structure being in place.
They say that prior to its use, strangers could easily peer into the 'baby room' at the front of the building, and that the fence also allows children to safely play in the outdoor area in front of the property.
One mother, Natalie Toby, said: 'I'm a security advisor so from my point of view, it keeps children hidden away from the public walking past.
'You can't really see where the front door is unless you go all the way down there, so they're keeping access routes nice and tucked away.
'The nursery has been here for 30 years so I don't see why the council are applying the same rules that they would to domestic dwellings.
'New-build schools are being built with fence lines not dissimilar to this, so why are they not allowing this?
'Surely the safety of the children is more important than the aesthetics.'
She told of an incident, before the fencing which blocks the window of the front room was erected, when a postman unintendedly dropped heavy parcels through the window of the baby room.
She added: 'So it's not just about keeping it closed off from people with malicious intentions, it's accidental things as well.
'They've got vulnerable children in that front room, and having the fence up keeps the babies safe.
'It's ridiculous, I don't understand why the council are being so stubborn about it.
'Surely safeguarding children and their safety is paramount to aesthetics.
'I don't want my daughter in a room where people can just walk past and look through.'
Another parent had echoed the same concerns, saying: 'As a teacher myself, I understand the importance of safeguarding children, and I wouldn't want the fence to be taken down.
'My daughter goes to this nursery and my eldest just started school but she went here the whole way through.
'It's a brilliant nursery and they've got the best interest of the kids at heart.
'Prior to it being like this, you could see into the baby room.
'When my eldest was in the baby room, you could see her, you would be able to wave. But obviously, that's different as a parent than a stranger being able to look in.
'It feels a lot safer now, knowing that no-one can see in or get in easily. It's very secure.
'Having the fence also means they can use the outdoor space for kids. I think they have Santa there at Christmas and stuff like that.'
She added: 'They do try and make it look as attractive as possible too, so they change it seasonally, so it's all Halloween-themed at the moment.
'I don't think it's an eyesore.'
The council's enforcement notice for the removal of the fence had stated that the height, layout and 'solid appearance' of the fence deemed it unacceptable for the area.
The decision notice stated: 'The development at the site, by reason of its height, layout and extent, and the solid appearance of the fencing within the frontage, appears visually prominent, stark, and materially out of keeping with the typically spacious setting of the surrounding area, and has resulted in significant harm to the character and appearance of the site, the streetscene and the area more widely.'
But now, the Planning Inspectorate's appeal decision states that the fence does not appear 'excessive' or 'incongruous' and can remain standing.
Speaking to MailOnline, one neighbour had said of the development: 'It is a bit unsightly. I was amazed they were even allowed to put it up, but turns out they weren't.
'I understand why they did it, but planning permission is planning permission and you have to abide by it.
'My personal opinion is that it is a bit unsightly. It would have bothered me more if I was right next door to it. But even from here, it is unsightly.'
Another neighbour echoed the same concerns, saying: 'It's not nice, it looks awful.
'And the planning was retrospective as well.'
While most parents said the fencing made them feel safer, one parent said the outdoor space is very rarely used.
She said: 'We're not too bothered either way. I can understand that some of the neighbours don't particularly like it.
'Before it was up, we were funnelled a different way. So really you would only see into the baby room if you were queuing to pick up your children.
'So, if you were a stranger not part of the nursery, you would have to actually come off the street, stare in a window and be quite obvious about it.
'I know the nursery are saying it's for safeguarding but when it's just the parents having a quick look in to see their children, I don't think that's much of an issue.
'And I've never seen anyone use that outdoor space. To my knowledge, it's not really used.'
Another parent, however, said he had pledged support for the nursery who at the time had a petition going.
He said: 'I've actually emailed the nursery showing support for their petition.
'It seems like the council is looking at the view of the place and the aesthetics than the safety of our kids.
'The whole point was to protect the kids.
'I feel a lot safer leaving my kid here knowing the fence is up.
'It stops people from seeing in and being able to look at the kids.'
A grandmother picking up her grandson from the nursery added: 'I think it's terrible. The fence gives a bit of safety for the children.
'It's very strange that the council are doing this.'
The nursery said: 'Imperial Day Nursery has successfully defended itself in its dispute with Southend City Council over the frontage of the property, both Nursery and residential.
'We are thrilled with the outcome of the appeals including our applications for costs.
;This matter has hung over the nursery for more than two years now and with associated costs amounting to just over £35,000 it has been a very heavy financial burden to bear with no guarantee of success.
'Other similar children's nurseries treated and experiencing the same may not have had the resources to survive as we have managed to do.
'We feel that our approach has been fully vindicated by the appeals inspector.
'As both a business rates and a council tax payer it is extremely concerning that the council's unreasonable behaviour has cost Southend on Sea City Council taxpayers so dearly. We sincerely hope that lessons will be learnt from this judgement moving forward and applied accordingly.'
The council have since acknowledged the Planning Inspectorate's decision.
Cllr Anne Jones, cabinet member for planning, housing, and the local plan, said: 'The Council took a balanced decision, recognising the benefits of the fencing for the nursery, while also acknowledging the harm its prominence caused to local character.
'We respect that the Planning Inspectorate reached a different view on where that balance should lie.'