We all have extensive freedom to enjoy our gardens as we wish, provided we don’t interfere with the reasonable rights of others to do the same. Rosie Watson reports
Adding to the enjoyment of our gardens by putting up, for example, sheds, fences and garages is controlled by planning law and, though planning permission is often not required, the rules are complex. The law says we are responsible for events that occur on our property and this translates into a duty of care to ensure friends, family, visitors and contractors are not exposed to danger. So what issues should we be aware of as we look forward to a new year in the garden?
Sophie Worthington: From log cabin to hot tub
Four years ago, Sophie Worthington* and her husband decided to put up a log cabin at the bottom of their garden and, because they live in a conservation area, they thought they should check with their local council if planning permission would be required. Sophie telephoned the council to ask and the answer was no, it wouldn’t, so they went ahead and placed their order.
Some time later, fortunately before it arrived, they discovered that they had been misinformed by someone who was presumably a junior member of staff, and planning permission was indeed required.
“The process was straightforward, with plans provided by the company supplying the cabin,” says Sophie, and planning permission was granted in the first instance.
However, she adds: “A local conservation group exercised its right to appeal against the decision. Unfortunately for us, on appeal permission was refused on the grounds that the structure was not in keeping with the area.
”Sophie and her husband were disappointed. “The cabin would not have been visible from the road and barely visible from any neighbours’ upstairs windows,” she says. “Our garden is mature and we have landscaped it in a way which affords us maximum privacy.”
Now that they were not able to have the log cabin, the Worthingtons decided they would install a hot tub in the rear corner of the garden. “So,” says Sophie, “once again we checked and this time, much to our relief, permission was not required so we went ahead with our plans to have the tub installed.”
However, another nasty surprise was lying in wait. The model they had ordered was too large to be brought down the side passageway of their house, and getting it into the back garden would involve hiring a crane and having the road closed during the delivery. The cost implications were horrendous, with the crane alone costing around £2000.
“We were not prepared to incur this additional expense – never mind the complications involved in having the road closed – but we still wanted to have a tub and fortunately the supplier agreed to change our order to a smaller model.
”The tub was finally installed and the family is delighted with the result. Maintenance is crucial, and this is Sophie’s responsibility. She is now using non-chlorine products which are gentler on the skin and avoid that ‘swimming pool’ smell.
Sophie says it comes into its own in cold weather. “Submerging yourself in bubbling water, which is as hot as a bath, on a freezing cold day is a fantastic way to relax and warm up. Much of the pleasure comes from the fact that you are outdoors and able to enjoy the garden even on the chilliest day. It is a great addition to any garden and provides the opportunity to relax and chat with family and friends in an unusual setting.”
* Not her real nameFront gardens and decking
From October 1, 2008 new rules have applied to some external changes home owners wish to make. These include installing decking and paving over front gardens. Installing decking or raised platforms in your garden is now permitted development which does not need planning permission provided that:
- The decking is no more than 30cm above the ground
- Together with other extensions, outbuildings etc, the decking or platforms cover no more than 50 per cent of the garden area
- You do not live in a conservation area.
If you want to pave over your front garden, perhaps to provide parking space, and the surface to be covered is more than five square metres, planning permission will now be required for laying traditional, impermeable driveways (such as concrete, bricks, paving slabs or tiles) that do not control rainwater running off on to roads. The new rules are a result of concerns that the combined effect of lots of people in a street or area doing this can increase the risk of flooding and that hard surfaces collect pollution (petrol, oil, dust etc) that is washed off into drains and from there to streams or rivers where it damages the environment.
Whatever the size, you will not need planning permission if a new driveway uses permeable (or porous) surfacing which allows water to drain through, such as gravel, permeable concrete block paving or porous asphalt, or if the rainwater is directed to a lawn or border to drain naturally.
Bouncy castles
Parents and grandparents up and down the land routinely hire bouncy castles for children’s garden parties. Safety must now be high up the agenda following a tragic accident involving a ten-year-old boy. In 2005 Sam Harris suffered permanent brain damage after being accidentally kicked by an older boy who was somersaulting on the bouncy castle. On his behalf, Sam’s mother sued Mr and Mrs Perry, the couple who had hired the castle and were in charge of the birthday party.
Last May, the High Court awarded damages against the Perrys, holding them liable for Sam’s injuries. Damages were assessed to be more than £1m. The judge said the level of supervision provided by the Perrys was inadequate but he allowed the case to be taken to appeal because of what he called the potential significance of the ruling on anyone operating inflatable equipment. Mark Jerram, founder of the British Inflatable Hire Alliance, said: “This is the first time as far as I know that a claim has been brought against parents who hosted a party. It was a tragic but rare accident.”
The Court of Appeal judges agreed in July, ruling that it was “a freak and tragic accident. It occurred without fault.” Lord Phillips said: “It is impossible to preclude all risk that, when playing together, children may injure themselves or each other and minor injuries must be commonplace. It is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so.”
The Perrys’ home contents insurance would probably have covered the cost of the claim but these cases are notoriously difficult to predict. Home contents policies usually include public liability up to £2m and policy holders are covered for events when their negligence is held to be responsible for injury to others. Examples are trips, slips, falls from ladders, swimming pools or pond incidents. A cautionary word here: where a policy holder has been reckless (to be aware of the danger but carry on regardless), they will not be covered. Insurance companies examine these claims on a case-by-case basis. Had the Court of Appeal found the Perrys liable and that they were reckless, they could have found themselves uninsured.
Noise nuisance in a garden
This is often a summer problem, ranging from dogs barking or loud music to the constant sounds of a DIY enthusiast. Remember that it is unreasonable to expect silence when you go outside your house. Other people are entitled to make reasonable noise while using their gardens. A constantly barking dog may be distressed because it’s left alone outside all day. If you feel concerned about a dog or other noise that you think is unreasonable, the first step is to talk to your neighbours. They may not realise they are disturbing you, and you may be able to reach an agreement limiting the noise to certain hours.
If that fails or you are afraid to speak to them, contact your local council which will give you advice and, if necessary, assess the noise to ascertain if it constitutes a ‘statutory nuisance’. If it does, the council will serve an abatement notice on the culprits, which sets out what they must do. That could range from totally ceasing to make the noise to making it only between set times. If they fail to comply, they could be fined up to a maximum of £5000. If the noise is coming from licensed premises operating outside their licensing agreement, the fine for ignoring an abatement notice is up to £20,000. If the problem is a dog barking and you are concerned about its welfare, call the RSPCA (see Animal Welfare).
Hedges and trees
You don’t normally need permission to plant a hedge in your garden, and there are no laws that say how high you can grow your hedge. But you are responsible for looking after any hedge on your property and for making sure it is not a nuisance to anyone else.
However, some people have little regard for their gardens and allow the trees and hedges to get out of control. Sometimes this blocks light to their neighbours’ windows or prevents plants growing where it casts shade. It can be dangerous where trees are so neglected that they are at risk of falling.
The Communities and Local Government website publishes a helpful leaflet called Over the garden hedge. It suggests positive ways to resolve any tree/hedge disputes with your neighbour: (www.communities.gov.uk/publications/planningandbuilding/highhedgescomplaints). The leaflet – High hedges: complaining to the council – explains the local authority’s role in resolving these disputes. To order both leaflets, tel: 020 7944 4400.
Councils can act under the Antisocial Behaviour Act 2003. The council’s job is to decide whether the hedge is “adversely affecting your reasonable enjoyment of your property” and, if so, what action – if any – should be taken to remedy the situation or to prevent it happening again. The use of the word ‘reasonable’ is important. It means the council cannot just take into account your concerns. It must also consider your neighbour’s point of view and think about the consequences for the neighbourhood. For example, the hedge might help to make the area an attractive and pleasant place to live. This process is not going to be swift: you need to provide evidence that you have made positive, recent efforts to resolve the dispute; you will have to pay for the service; and there is no guarantee you will achieve the outcome you want.
Dangerous dogs
According to DEFRA, there are hundreds of attacks by dogs annually, many taking place in gardens, either in the dog’s ‘own’ or where it has strayed into a neighbour’s garden. Here again, the law is complex. The Dangerous Dogs Act 1991 (which gives protection to the public from a dog of any breed which is dangerously out of control in a public place) makes it a serious offence to allow a dog to enter a private place where it has no right to be and, while there, injure a person.
However, if the dog is permitted to be on private premises, (its own home or a visiting friend’s dog), only the Dangerous Dogs Act 1871 applies. In addition, where a person is invited on to premises by the occupier and is injured by a dog, a claim under the Occupier’s Liability Act 1957 that the occupier has been negligent may succeed. Claims for injury have to be brought within three years of the date of the accident/injury or three years from the date the injured person became aware the accident/injury caused the problem they now suffer from. For children, the three years can run from the age of 18, in which case they could still potentially receive compensation for an injury sustained in early childhood.
Chickens/turkeys
Whether or not you can keep chickens or turkeys depends on why you want to keep them. If it is to be a commercial enterprise, permission must be obtained from your local council, and the Department for the Environment, Food and Rural Affairs (DEFRA) will be interested in your activities as you will be producing food for public consumption. If you simply want to wake up to your own fresh eggs, permission will not normally be required. The shed you keep them in is another matter. Permission will be required for this if you are in a conservation area or your house is a listed building. Chicken droppings are regarded as a potential health hazard. You will have to clean up regularly to protect the birds’ health and avoid falling ‘fowl’ of the authorities (excuse the pun). Another potential problem is noise, especially if you keep a cockerel (see ‘Noisy Neigh-bours’). Urban and suburban domestic premises are not really suitable for raising chickens, if only because of the abundance of foxes which have been left hungry by the adoption of wheelie bins.
Animal welfare
The Animal Welfare Act 2006 made owners responsible for ensuring the needs of their animals are met. These are suitable diet, environment, the need to be housed with or apart from other animals, to be able to exhibit normal behaviour patterns, and to be protected from pain, injury and disease.
The RSPCA recently brought a case against a child under 16 when she failed to take the family cat to the vet despite the fact her father had told her they should leave it for a few days.
If you are concerned about the welfare of an animal contact the RSPCA. It tries to help the owner rather than removing the animal. The RSPCA has welfare centres and clinics and can help those on low incomes with subsidised veterinary treatment, information and re-homing. Removal of an animal is a last resort, but the RSPCA will do this if the animal is in distress.
To contact the RSPCA, tel: 0300 1234 999.
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