Spotlight on building regulations & planning permission

As professional designers, we have a responsibility to our clients to know as much about the law as possible. Rightly so. We try our best to keep up to date through industry debates, publications and CPD sessions.

There are several aspects to consider when re-designing an outdoor space, not least to avoid any hold-ups with implementation and last-minute expenses that could have been foreseen.

The approach

On entry to a property, it must be borne in mind that even the driveway is subject to legislation. Planning permission requirements changed in late 2008 when the government acted to reduce the impact on flooding and watercourse pollution from residential properties.

Permission is required where a surface area of 5m2 is to be covered in impermeable materials. This will call for completion of an application form, scale plans and a charge. Sean Butler, writing in Pro Landscaper magazine, highlights how ‘planning applications for this type of development will normally be decided within eight weeks of submission’, but in our experience can be even longer.

While on the topic of flood risks, it is necessary to fill out a Flood Risk Assessment if a space of 1 hectare or more is being developed, necessitating consideration of possible effects, how these will be managed in future, and how they might be reduced during work.

Away from surfaced parking spaces, patios and paths come under similar scrutiny, but more important here is that such a surface does not decrease ease of access to the property and related buildings in relation to the present situation.

Blurred lines

Looking up from the driveway, we also find that any walls dividing two neighbouring properties – whether owned by both sides or simply standing between but owned by one – have legal requirements themselves. This is outlined in the Party Wall Act 1996, and we must note how it is vital the client notifies his or her neighbours of any alterations affecting the party wall. The act in question also mentions party structures – any other edifice or groundwork used to delineate boundaries.

What changes could the designer and client be considering that would have an effect on party structures? Construction of a wall where none exists to date or demolishing and rebuilding a current one. Building into/out from a dividing wall to raising or lowering its height, or even excavating below the level of a party wall.

A fence, wall or gate must not be any taller than 1m when adjacent to a vehicle highway or associated footpath, nor higher than 2m in any other location. If it would be, or if it affects the curtilage of a listed building, planning permission must be sought.

Similarly, hedges must be limited in their height. To try to reduce the incidence of boundary disputes and subjectivity towards it, the Anti-Social Behaviour Act 2003: Part 8 actually defined what a “high hedge” is. Chiefly, a line of trees or shrubs more than 2m in height and semi- or totally evergreen. If a hedge fulfils this definition, legal complaints can be made, and the owner will have to take action. If we as designers intend to install a hedge, height must be considered. Certainly the nature of the hedging plant (i.e. evergreen versus deciduous) should be carefully evaluated too.

This category – shared boundaries – is generally the most contentious issue relating to planning and legislation in outdoor space.

Stealing the limelight

How do our designs influence a neighbour’s current levels of light or breeze – often through the introduction of tall features? A neighbour’s light levels cannot be legally altered without planning permission. These may require the completion of a Microclimate Assessment too.

We must underline that the granting of planning permission by a local council does not assure immunity to any later action by a neighbour under the Rights of Light Act 1959. It’s best to restrict any works that might overshadow the adjoining properties/spaces from the outset.

Elevating things to another level

We’ve touched upon regulations around changing the height of a party wall/structure. However, we must also consider the re-levelling of ground in the garden. The most obvious aspect to ponder first is what impact such an alteration may have on surrounding properties.

That raised terrace at the end of the plot may be a fantastic sun-trap, but will it also make seeing your neighbours relaxing by their pool an unavoidable pastime every moment the clients are sipping their G&T?

Likewise, the elevated hot tub we’ve carefully embedded into our design might be a stone’s throw from the back door, but it also creates noise and commotion by near where the client’s neighbours have to store and access their bins. Oh, and it looks over directly into their kitchen window.

Hardly desirable for either party, and as is evident, as much an ethical and common-sensical consideration as a legal one. Decking and other raised platforms are “permitted development”, exempt from planning applications, according to the Planning Portal. Nevertheless, restrictions apply: the platform cannot be more than 30cm above ground level. It shouldn’t cover (in combination with other structures) more than 50% of the outdoor space.

Wild at heart

There has been a huge push on ecologically sustainable gardening, not just for flooding and pollution purposes as already mentioned, but also to help do our part as individual households for our flora and fauna. Many of us love having birds visit our gardens, and enjoy spotting hedgehogs, badgers or similar pottering about our outdoor spaces.

In this respect, projects may occasionally require submission of an Environmental Statement as part of the Environmental Impact Assessment Regulations. This is essential in areas marked out as areas of ecological interest (identified in the Unitary Development Plan and Nature Conservation Strategy, found in local libraries as well at First Point). If the project site is marked out, or contains protected species as listed in The Conservation Regulations 1994 (such as badgers, great crested newts or otters), you would be advised to contact a local Ecology Unit as early as possible. The assessment could then require a full ecological survey or an individual species survey and report.

The garden may be situated in a conservation/protected area. This can range from an internationally designated region to an Area of Outstanding Natural Beauty, to marked out ancient woodland. Clients should often already be aware of such a designation from purchase of their property.

Closer to home

The work we do as designers not only influences the wilder reaches of the outdoor space, but also man-made structures within said space: the houses and any outbuildings. Never begin work re-structuring a garden that will impact on these buildings if listed, monuments or “non-designated heritage assets” (for example, archaeological or historic sites) without looking into planning permission and the potential need for a Heritage Statement first.

The erection of smaller detached buildings such as greenhouses, summerhouses or sheds is not subject to building regulations if the floor area will cover 15m2 or less and will not be used for overnight accommodation. It can be subject to building regulations, however, if it’s 15-30m2 and either 1m or less from a plot boundary or built from combustible materials.

The final picture

Researching shows that the relation of garden design to building regulations and planning permission is an unclear area. If unsure as to the appropriateness and legality of a feature, the best course of action would be for designer or clients to discuss potential plans with their neighbours, or check with the local planning office before embarking on a costly court case or reconstruction after the horse has bolted.

Sources/Further reading

Boundaries Building regulations Construction garden design Groundwork Hedges Landscape design Law Levels Light Neighbours Planning permission Structures trees Walls