Decision details

The Confirmation of an Article 4 Direction –Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the 2015 Order) The Land on The West Side of Wargrave Road opposite Beech Tree Farm RG10 8PJ (the Land).

Background
An application pursuant to Section 192 of the Town and Country Planning Act 1990 (as amended) (CLOPUD Application) was submitted to the Council on 20 September 2021, to determine whether or not the proposed use of the Land for allotments was lawful. The application sought confirmation that the claimed agricultural use may be changed to the proposed use without requiring planning permission. Agriculture’ includes the use of land for allotments (as decided in Crowborough Parish Council v Secretary of State for the Environment and Wealden DC [1980] 43 P
the essential characteristics of Green Belts are their openness and their permanence.
The Council by confirming the Article 4 Direction (with immediate effect) under the 2015 Order will remove certain permitted development rights as a consequence of which planning permission will be required for Minor Operations. The plan submitted with the CLOPUD Application of the proposed use indicates that discrete plots (10 in total) would be enclosed by fencing or another means of enclosure.
Consideration of Representations
There was one objection to the Article 4 Direction and another representation which was in favour of the Article 4 Direction and sought clarification of its scope and effect.
Solicitors representing the objector by letter dated 16 December 2021 stated that: “The land is in agricultural use and our client has proposed putting to an alternative agricultural use as allotments. This clearly would not have any impact on the local amenity”.
The first sentence is both factually accurate and accepted. The Council granted a CLOPUD application essentially on that basis. The second sentence asserting no impact on amenity is not accepted. There is a context to the CLOPUD application which indicated the fencing off of 10 plots. The sales particulars of the plots detailed the dimensions: 10 Plots each at £45,000 and each with dimensions measured at 45 feet x 271 feet (13.7 metres x 82.6 metres). Fencing of one metre in height is not characteristic of allotments plots. Moreover, the cumulative impact of multiple fences would further heighten its prominence and incongruous appearance.
The objection letter further asserts: “Agricultural land benefits from limited permitted development rights primarily under Part 6 (Agriculture and Forestry) and Part 2 (Minor Operations). It is not considered that development under either of these parts would have a negative visual impact on the land given the limited nature of such works and the lawful use of the land”
To reiterate there is no issue per se with the lawful use of the land, the CLOPUD was approved. The Council planning officers and tree officers do not accept that the erection of fencing around 10 Plots each with dimensions measured at 45 feet x 271 feet (13.7 metres x 82.6 metres) would not have a negative visual impact on amenity. The land amongst other things is protected by a confirmed Tree Preservation Order and is part of a Valued Landscape. Part of the land adjacent to Hennertion Water is designated as a Local Wildlife Site.
Reference is made in the letter of objection to: “Other land along Wargrave Road and Hennerton Backwater has large development in the form of substantial dwellings, tennis courts, swimming pools and large areas of hardstanding for access and turning. Arguably such development has significantly more detrimental effect on the character of the area than fencing on an agricultural site…”
Firstly, the land subject to the Article 4 Direction is not residential curtilage to which the uses incidental to the enjoyment of a dwellinghouse relate. Secondly, the NPPF Guidance provides that Article 4 Directions should be:
•necessary to protect local amenity or the well-being of the area
•in all cases, be based on robust evidence, and apply to the smallest geographical area possible
Hennerton Backwater forms a boundary to the Land and Hennerton Backwater Association made up of local volunteers maintain the banks to Hennerton Backwater. The Land forms part of the local amenity and the construction of significant fencing on the land would harm that local amenity.
The land subject to the Article 4 direction is a small geographical area. It does not extend to the residential curtilages on the other side of Wargrave Road. It is confined to this area of Valued Landscape of which part is protected by a Tree Preservation Order and part is designated a Local Wildlife Site.
Expediency
Only by the use of the Article 4 direction, and through the requirement for planning permission, can the Council determine a planning application in accordance with the development plan, as well as other material considerations such as the NPPF (National Planning Policy Framework). As such the Article 4 direction meets the legal test in that the Council is “satisfied that it is expedient that development… should not be carried out unless permission is granted…” (2015 Order). By the same measure, the Council is also satisfied that the making of the Article 4 direction is in accordance with the guidance within the National Planning Practice Guidance (NPPG) in being “necessary to protect local amenity or the wellbeing of the area.” The deciduous woodland and other trees that comprise part of the Land are protected by a confirmed TPO 1831/2021 and the site is identified as being part of a Valued Landscape in the Topic Paper Valued Landscapes January 2020. As countryside but especially as a Valued Landscape the Land is further worthy of protection and enhancement under paragraph 174 (a) and (b) of the National Planning Policy Framework 2021 which provides the following:-
“174. Planning policies and decisions should contribute to and enhance the natural and local environment by:
a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan);
b) recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural capital and ecosystem services – including the economic and other benefits of the best and most versatile agricultural land, and of trees and woodland;);”
In terms of habitat Natural England’s National Habitat Networks map scores the Land as being within a Network Enhancement Zone between lowland fen and woodland Habitat of Principal Importance (likely a mix of wet woodland and lowland mixed deciduous woodland).
The Council considers that the confirmation of an immediate direction is necessary as boundary fences ostensibly to allotment plots and other building operations may be carried out under permitted development on the Land should the Council allow the Article 4 Direction to expire without confirmation. These would create negative visual impacts on local amenity. The Council is required to consider the protection of trees (forming part of the landcape) and has confirmed a Tree Preservation Order (1831/2021) in response to the likely impacts of fencing of 10 plots within the Land.

The option of doing nothing and not confirming the Article 4 Direction having immediate effect is not considered appropriate in these circumstances, as it would fail to protect the amenity and wellbeing of the area.

None