Garden curtilage appeal fails despite land ownership

A garden curtilage appeal in Chichester has been dismissed after a Planning Inspector decided that private ownership of a grass strip did not demonstrate that it was already part of a domestic garden. The homeowner had erected a new timber fence beside a public footpath and sought retrospective permission to use the land as a residential garden.

At 8 Gloucester Way, on the East Broyle estate, Inspector Stewart Glassar found that incorporating the land into the garden would undermine the established separation between open estate spaces, pedestrian routes and enclosed private gardens. Crucially, he considered the change of use unacceptable even without the fence.

The decision, dated 5th October 2026, upheld Chichester District Council’s refusal of application CC/26/00662/FUL on 18th May 2026. The Inspector also rejected a separate application for a full award of appeal costs against the council.

What the original Gloucester Way planning application proposed

The retrospective application was submitted on 23rd March 2026 under section 73A of the Town and Country Planning Act 1990. It proposed the material change of use of land west of the established garden of 8 Gloucester Way to residential garden land.

The detached house sits within an estate in northern Chichester where grass verges, open frontages and footpaths are important features of the layout. The disputed land lay between the former garden fence and a footpath linking Gloucester Way with Worcester Road. Although within the homeowner’s ownership, it had previously remained outside the enclosed garden.

The applicant’s Design and Access Statement reported that in 2025 an existing boundary fence had been replaced with a close-boarded timber fence of approximately 1.95 metres in height, set further west towards the path. The statement proposed retaining a grass strip of about one metre between the new fence and the footpath and gave an area of approximately 180 square metres for the proposed residential use.

The applicant’s position was that the land had been owned and maintained with the property, and that incorporating it into the garden would improve privacy, security and the usefulness of the space.

Why the council refused the application in May

Chichester District Council refused planning permission on 18th May 2026 because of harm to the estate’s established open, spacious and verdant character. Its delegated report described an estate planned with numerous paths and areas of open amenity land, where the original garden fences were generally set back from public routes.

The officer described the relevant strip as around 23.3 metres long and varying from approximately 4.7 to 7.8 metres in width. Bringing close-boarded fencing towards the footpath changed the sense of openness and the visibility available to people walking along it.

The council also noted that the submitted red line included land outside the new fence. Its assessment considered the potential for additional domestic items and activities to spread onto previously open land, changing its appearance.

One third-party objection raised concerns over the estate’s character and the precedent for similar proposals. The officer did not find unacceptable loss of privacy or outlook for neighbouring occupiers. The refusal was principally about the impact on the wider estate rather than neighbour overlooking.

The council relied on its local plan character and landscaping policies, particularly P2, P3 and P5, alongside national design policy. The council’s planning register can be searched using reference CC/26/00662/FUL.

Garden curtilage appeal: ownership was not decisive

Inspector Glassar made his site visit on 9th September 2026. He considered the appellant’s argument that the land had always formed part of the residential curtilage and examined original drawings and title plans showing the disputed area within the property’s ownership.

The council supplied drawings indicating that the originally approved garden boundaries and enclosures were set further back, leaving the land outside the fenced garden. The Inspector questioned why previous occupiers had not used or enclosed the strip as garden land for so long if it had always been regarded as domestic curtilage.

He explained that housing estates sometimes contain land legally owned by adjoining householders but retained outside their private gardens. This can arise where a developer transfers responsibility for land that has not been adopted by the council. In the Inspector’s words, “ownership does not necessarily directly translate into the land being curtilage”.

On the balance of probability, the appellant had not demonstrated that the strip was already within the property’s residential curtilage or had an established residential garden use. The Inspector stressed, however, that this was not an application for a Certificate of Lawful Use. That alternative route remained open for consideration on separate evidence.

Why the change of use failed even without the fence

The Inspector’s finding went further than the physical fence. He judged that the open grassed area had performed an important function in maintaining the overall spaciousness of the estate, even though it was neither landscaped as a park nor necessarily available for public recreation.

Moving the domestic garden to the edge of the footpath would alter the established relationship between public and private spaces. It could also introduce play equipment, garden furniture or other domestic activity into an area that had historically contributed to the open street scene.

For those reasons he concluded that the material change of use itself would be harmful, irrespective of any means of enclosure. Removing the fence from the assessment would not have resolved the underlying planning objection.

Even a low fence would not have resolved the garden-use issue. Had the owner used a one-metre metal railing or timber picket fence instead of the almost two-metre close-boarded fence, the same fundamental objection to incorporating the amenity strip into the residential garden would still have arisen on the Inspector’s reasoning. A lower, more open fence could reduce the separate visual and sightline impacts, but it would not, by itself, make the material change of use acceptable or lawful. The Inspector did not assess a specific alternative low-fence scheme; his finding was that the change of use was harmful irrespective of any means of enclosure.

Why permitted development for fencing did not rescue the proposal

The applicant’s Design and Access Statement recorded advice from planning enforcement officers indicating that the new fence itself did not require planning permission under Schedule 2, Part 2, Class A of the General Permitted Development Order 2015. The relevant height restriction for fencing adjacent to a highway used by vehicular traffic was not considered applicable to this pedestrian path.

But a footpath is not automatically exempt from the 1 metre limit. Under Class A.1(a), a new fence adjacent to a highway used by vehicular traffic does not ordinarily benefit from permitted development rights if it exceeds 1 metre in height. Depending on the route, lawful use by cyclists or vehicles exercising private access rights may be relevant, even if it appears to be a pedestrian path. Its legal status, actual vehicular use and the fence’s position need checking. In a separate Chelmsford appeal (APP/W1525/X/24/3350843), a public footpath used by vehicles under private rights was found to trigger that limit. The supplied Gloucester Way documents do not establish comparable use of this path, and the Inspector did not determine the fence’s permitted development status. Our detailed Class A fencing guide is linked below.

That advice did not authorise the separate material change of use. The application was made because additional open land had been enclosed and put into use as garden.

Inspector Glassar did not make a definitive ruling that this particular fence was permitted development. Instead, he considered the fence a likely and foreseeable consequence of residential garden use, because an occupier would naturally want privacy and security.

Having seen the fence, he found that it reduced the perceived spaciousness of the footpath, appeared overbearing to pedestrians and interrupted clear views along its length in both directions. The Inspector regarded these as public amenity and safety considerations that added to the harm of the proposal.

More broadly, Part 2 Class A fencing rights and permission for a change of land use are different planning questions. A fence may qualify as permitted development without making a new garden use lawful. It is also important to check planning conditions and any Article 4 restrictions before assuming fencing rights apply.

Separate enforcement action and costs decision

Chichester City Council’s Planning and Conservation Committee minutes of 16th July 2026 separately recorded that an enforcement notice had been issued in relation to the land, requiring the garden use to cease and the enclosure fencing and items to be removed. That committee report is not itself a determination of the notice’s subsequent status. The present Inspector’s decision was a section 78 planning appeal, not a decision on an appeal against that enforcement notice.

The homeowner also sought a full award of costs against Chichester District Council. Inspector Glassar refused the application in a separate decision dated 5th October 2026. He found that the council had not behaved unreasonably in questioning the land’s curtilage status or in assessing the foreseeable consequences of its proposed use, including the new fence.

He also observed that, even without the fencing issue, the council’s objection to domestic use of previously open amenity land would remain. There was no reason to assume an application would have succeeded if the council had assessed only the change of use.

What other homeowners should learn from this appeal

Many post-war housing estates have grass strips, open corners and pedestrian links which appear to be spare land but contribute to the overall planned character. Private ownership does not remove the planning importance of that arrangement. Nor does cutting the grass, maintaining the land or enclosing it necessarily prove an established lawful residential garden use.

Before moving a boundary into amenity land, owners should check the original estate approvals and any conditions, historic fences and actual land use, the extent of the title, and whether the proposed enclosure benefits from permitted development rights. Historic aerial photography and properly evidenced use may be important if a Certificate of Lawfulness is contemplated.

Where a material change of use is proposed, its acceptability must be assessed in its own right. The planning merits may still be adverse even if a fence could lawfully stand on the land. This decision is not a blanket prohibition on domestic garden extensions, but it demonstrates the need to establish the lawful starting point before enclosing estate amenity space.

For a contrasting example where a realistic permitted development fallback did carry weight, see Planning Geek’s South Holland fence appeal report. The difference is that Gloucester Way involved a separate disputed garden use that was independently unacceptable.

Original application and appeal references

Location: 8 Gloucester Way, Chichester, West Sussex PO19 5DL. Planning application: CC/26/00662/FUL, refused 18th May 2026. Appeal: 6011850, dismissed 5th October 2026 by Inspector Stewart Glassar BSc (Hons) MRTPI. Separate costs application: refused 5th October 2026.

Appeal evidence: Full appeal and costs decisions on Appealbase and the Planning Inspectorate appeal record. Original application: Chichester District Council’s planning register, reference CC/26/00662/FUL, including the application statement, delegated report and refusal notice. Legislation: GPDO 2015, Schedule 2, Part 2.

Illustrative photograph: new timber fencing beside an English estate footpath. The generated lead image is not a photograph of the Gloucester Way site.