Can a Parish Council instruct neighbours of a piece of public open space to remove their gates to the site?

Question

Neighbours to a piece of parish-owned land have installed gates in the rear fences of their properties to access an area which has been set aside as a community garden.   It's a public open space with no access restrictions.

One of my members is proposing that the council write to the neighbours and instruct that the gates be removed.

I would like to seek a legal opinion before any such action is proposed as I believe that the council has no rights to tell the neighbours what they can and can't do with their own fences and that, if the council wishes to prevent access to the site, it need to install its own fence along the boundary with neighbouring properties.

Any advice greatly appreciated.

Answer 1

I believe to erect the gates would constitute a material operation which requires express planning permission, especially if the gates also open on to land accessible to the public.  If the council wishes to install a further fence along side of the existing fence, then this may also require planning permission. In the first instance, I recommend contacting and seeking advice from a planning officer at the local planning authority.

Answer 2

The Parish or Town Council has no jurisdiction to function as a planning authority as it can't instruct the neighbours.  Planning permission from the Principal authority is required to erect or add to a fence, wall or gate if it would be over one metre high and next to a highway used by vehicles (or the footpath of such a highway); or over two metres high elsewhere; or

• the right to erect or alter fences, walls and gates is removed by an article four direction or a planning condition; or
• the house is a listed building or in the curtilage of a listed building or
• if the fence, wall or gate, or any other boundary involved, forms a boundary with a neighbouring listed building or its curtilage.

So the PC could contact the Principal Authority enforcement team about the gates.  However, the neighbours could then apply for & get retrospective planning permission.   If the PC  wants to build their own fence, they may need to apply for permission.

Answer 3

Is there a particular reason for removing the gates? Are they causing harm? If there are no access restrictions to the land, why are you seeking to restrict access in this way? How much further would the residents have to walk if they did not have a gate from their garden onto the open space? Would this distance be an impediment to a resident with mobility difficulties? Perhaps the real harm here is that the residents have created a security vulnerability for their own properties by installing an access point from public land?

If the reason for seeking to remove access is merely a fear of granting permanent rights at some unspecified point in the future, a deed of grant of easement could be offered. This is a legal document signed by both parties that defines the terms of the access rights. You retain control. They retain their gates. Everybody's happy!

Comments

It's that a right of access may become established that is concerning Council.  I will now suggest we deal with that by granting the easement suggested.  I'm grateful for the suggestion of calling in the planning authority but it no powers to intervene as all gates are integral to domestic style fences of under two metres.