Are we allowed an 8ft fence for privacy? Our neighbour says we've broken planning rules

Daily Mail​

2 days ago

Last month, my wife and I decided to replace the fences on either side of our garden. We've wanted to do it for ages to make the garden more private.
Given the original fences were only 4ft, we always felt very overlooked when either of our neighbours were in their garden. Plus the children of one family are always bouncing on a trampoline, which feels even more intrusive.
We asked both our neighbours if they were interested in contributing towards a bigger fence but both said they were not bothered. We mentioned that we might go ahead with it anyway and they seemed relaxed about it.
We decided to buy 8ft fence panels that we found advertised online to give us maximum privacy and had our local handyman install them, which saved money.
Now one of our neighbours is complaining that not only have we removed their fence, which we apparently had no right to do, but that our new fence is so high we should have got planning permission.
They said that if we don't reinstall the old fence they are going to report us to the council.
What should we do? And is there any legal protection under our right to privacy? Also, is there a way to find out if the fence boundary belongs to us and would that give us any protection?
Let's double it: Our reader felt a four foot fence was an insufficient privacy screen, so they replaced it with an eight foot fence without getting planning permission
Ed Magnus, of This is Money, replies: When it comes to neighbours winding each other up, garden fences are a common cause.
In the past, we have had questions about a neighbour stealing someone's garden and a dog jumping up at a fence so relentlessly that it was in danger of knocking it down.
The height of a fence may seem an issue that wouldn't cause dispute, but I fear you may have acted a little too hastily in opting for these eight foot fence panels.
A quick search online would have revealed that anything above two metres (6.5 feet) typically requires planning permission, so your neighbour is probably right.
Trying to find a fair and reasonable solution with your neighbour should always be the first course of action.
But not everyone likes being fair and reasonable – particularly when it is a matter concerning their home.
For expert advice we spoke to Olivia Egdell-Page, a partner and head of the property department at Joseph A Jones & Co solicitors, Mike Hansom, a consultant for property litigation at BLB Solicitors, and Chun Wong, head of dispute resolution at Hodge Jones & Allen.
Will you need to replace the fence?
Olivia Egdell-Page replies: It is clear that you did attempt to seek agreement here, however, it may be that the neighbours' objections are now based on the height of the new boundary fence, rather than the act of replacement.
In terms of the boundary structures, planning permission is not required if you erect a new fence or replace an existing fence where the height does not exceed two metres.
If you are replacing a fence which exceeds two metres in height, you can replace this on a like for like basis, provided the height would not be increase.
On that basis, it does seem that planning permission should be obtained, as the height of the fence has been increased from four to eight feet.
Alternatively, you may consider reducing the height of the fence to the maximum height of two metres, however consideration must be given to the planning regime in the area and if there are any additional controls imposed on the property, for example if the property is listed or located within a conservation area.
Mike Hansom adds: The general rule - unless you live in a conservation area or a listed building - is that a fence can be a maximum height of one metre if it faces a road or two metres otherwise.
Therefore, an eight foot (2.44 metre) fence requires planning permission.
To comply with the law you should probably install panels no taller than two metres. If you did not do this, the local authority - but probably not your neighbour - has the power to enforce planning law.
What if the neighbour proves it was their fence?
Mike Hansom replies: If your neighbours can prove that the original fence belonged to them, then whether you need to restore it to its original condition depends on precisely what was agreed.
If your neighbours expressly consented to your removal of the fence on the condition that you would cover the cost of its replacement, they cannot renege on that agreement, although they can still take issue with its height via the council.
If they were merely silent, you may need to replace the fence, as silence cannot, in law, be construed as consent.
In that case you could erect a new six foot fence on your side of the existing fence. If you explain this to your neighbour, they may have a change of heart, as their view over your garden would be reduced in any event.
Do they have any rights of privacy?
Chun Wong replies: There is no absolute law which provides for a right to privacy in a garden especially against private individuals.
However, if something your neighbours are doing causing a nuisance this could give rise to a claim for statutory nuisance.
A starting point to remember though is that a fence is not necessary indicative or definitive of actual legal boundaries between properties.
A fence is just a physical boundary on the ground. A legal boundary is an imaginary or invisible line which divides one's land from another's.
What's the best thing to do about a fence dispute?
Chun Wong replies: Where possible it is always best to try and resolve any issues you have with your neighbour amicably.
You have to see them day in and day out so it is best to keep relations civil. In addition, if a dispute is escalated you may have to disclose this to any potential buyer if you are considering a sale in the near future.
You could also consider a more structured and formal alternative dispute resolution such as mediation.
The Property Litigation Association and Rics have launched a new mediation service to help neighbours resolve disputes over their property boundaries without resorting to court action - the Boundary Disputes Mediation Service
In the event that you really cannot resolve the matter, then proper legal advice should be sought at an early stage before you embark on any self-help which could make matters worse or prejudice your position.
You should check whether you have the benefit of Legal Expense Insurance as part of your home, contents, or motor insurance which may provide some indemnity for legal costs in these types of cases.
You could consider a hedge...
Mike Hansom replies: It is common for deeds to be unclear about who owns the fence.
If it cannot be demonstrated one way or the other, the legal position is the new fence panels belong to you.
You are entitled to inform the neighbour they are not to remove or damage your panels, as to do so could amount to criminal damage.
Although not an instant solution, another option is to plant a hedge next to the fence, if space permits.
Again you must check for the existence of planning conditions or restrictive covenants in your deeds, but in general there is no planning restriction on the maximum height of a hedge.
The exception is the Antisocial Behaviour Act 2003, sometimes known as the 'High Hedges Act' which legislates against hedges comprising two or more evergreen or semi-evergreen trees or shrubs over 2 metres in height.
A hedge of native deciduous planting would not fall foul of the legislation, can grow quickly and would soon provide added privacy, as well as a habitat for wildlife.
What punishment could they face if they refuse to lower the fence?
Mike Hansom adds: The amount of the fine depends what part of the enforcement process has been breached, and how severe is the breach.
However many breaches, including non-compliance with a planning enforcement notice, give rise to criminal liability and an unlimited fine.
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