A Rochester enforcement notice demanding the restoration of a homeowner’s altered garden levels has been quashed because its requirements were too imprecise. Planning Inspector T C King issued the decision on 4 November 2026, overturning the notice served by Medway Council in August 2024.
The dispute concerned a rear garden in Rushdean Road, Rochester, where the owner had changed ground levels and installed retaining sleepers and steps. The council wanted those features removed and the land restored, but the notice provided no measured baseline showing what restoration actually meant.
The Rochester enforcement notice decision is particularly revealing because the Inspector rejected two of the appellant’s legal grounds, yet still found the notice could not stand. The outcome turns on how an enforcement notice is drafted, not on a finding that the engineering works were automatically lawful.
Why the Rochester enforcement notice was issued
The appeal concerned an enforcement notice issued on 23 August 2024 against works in a residential garden. Medway alleged unauthorised engineering operations undertaken to facilitate changes in land levels. Its requirements included removing retaining sleepers and steps, restoring the former ground profile and clearing the resulting debris and materials.
The notice allowed two calendar months for compliance once it took effect. Homeowner Charles Agar appealed under grounds (a), (b) and (e) in section 174 of the Town and Country Planning Act 1990. Ground (a) seeks planning permission, ground (b) disputes whether the alleged breach happened, and ground (e) concerns service of the notice.
An enforcement notice can be serious even where the physical work seems modest. It must identify the alleged breach and specify the steps required with sufficient certainty for someone receiving it to know how to comply. Planning Geek’s guide to enforcement notices and appeal grounds explains the statutory requirements and the deadline for challenging a notice.
The service and factual-breach grounds failed
The Inspector first considered the appellant’s complaint that the notice had not been correctly served. The council said it had served five parties with interests in the land, including the owner and occupier and other identified interested parties. Mr Agar had himself lodged the appeal, and the decision records that he had not explained precisely how service was defective.
Ground (e) therefore failed. The Inspector was satisfied the relevant service requirements had been met and nobody with an interest in the land had been prejudiced. That finding did not resolve whether the separate reinstatement requirements were enforceable.
On ground (b), the owner accepted that he had altered the garden levels. He said the area had been badly overgrown when his family moved in during 2022 and that he had removed in excess of 40 tons of earth. The Inspector’s observations suggested lowering towards the rear, alongside some raising closer to a neighbouring boundary.
The Rochester enforcement notice was not defeated by arguing that the physical operations had not occurred. The Inspector considered that these engineering works required planning permission. This is an important distinction from a case where the notice alleges something which never happened.
Why an informal 30 cm approach did not create permission
Medway referred to an informal rule of thumb concerning level changes of no more than 30 centimetres. The Inspector described it as discretionary and observed that the General Permitted Development Order gives no express permission for engineering operations involving substantial changes in a garden’s levels.
That 30 cm figure must not be mistaken for a universal statutory permitted-development allowance. Whether garden engineering is development requiring permission depends on its nature and degree. Even where a council uses a practical threshold when deciding whether to investigate, it does not create a new right to excavate or raise land.
The council’s privacy concerns did not repair the notice
The council’s appeal evidence raised concerns about overlooking and loss of privacy. The Inspector considered the relevant relationship to be with the adjoining property whose garden sat lower, rather than another neighbour whose garden was roughly level with the appeal property.
The site visit also revealed children’s play equipment, including a raised timber structure, bridge platform and slide, which could potentially give rise to overlooking. But the Rochester enforcement notice was directed at engineering operations and garden levels, not at the lawfulness or height of play equipment.
That distinction mattered. An Inspector cannot simply convert an appeal about a particular alleged breach into a fresh enforcement case about other structures. If a council is concerned about additional works, it needs to identify and pursue those concerns through the appropriate process.
The decisive defect: restore the land to what level?
The second requirement told the appellant to Reprofile the Land to the previous land levels
. The Inspector found that Medway had supplied no detailed measurements or information showing those former levels. Without an adequate starting point, an owner could not reliably tell how much earth to add or remove to satisfy the order.
The first requirement was also uncertain, referring to associated steps at the front without sufficient clarity. In the Inspector’s words, the steps required by a notice need a significant degree of precision
. The concern was not merely imperfect drafting, but whether a recipient could know what had to be done and when compliance had been achieved.
Section 176(1) of the Town and Country Planning Act 1990 allows an Inspector to correct errors or vary a notice where that can be done without injustice. But this is not an unlimited power to rewrite an enforcement case. The Inspector considered the defects too extensive to fix fairly, finding the Rochester enforcement notice not reasonably capable of correction
.
The Inspector therefore quashed the notice. This was a decisive result for the homeowner, despite the earlier findings on service and the fact of the works. It was the uncertainty of the required remedy that made this particular notice invalid.
What the Rochester enforcement notice decision means
The ruling does not grant retrospective permission for the alterations, establish that no breach occurred, or decide that every change in garden levels is acceptable. The council’s notice failed because its own terms did not tell the recipient precisely enough how to comply. Whether further lawful enforcement action is justified would require its own assessment.
For councils, the practical lesson is to gather baseline measurements and identify restoration works precisely before issuing a notice. For property owners, the questions are distinct: did the works occur, did they need permission, was the notice correctly served, and are its demands sufficiently clear to carry out? A failure on one question does not automatically answer the others.
The Rochester enforcement notice also shows why photographs, historical information, surveyed levels and exact descriptions of structures can be important evidence. An appeal may succeed because the council cannot define the works it demands, even where a landowner accepts substantial changes have taken place.
Appeal decision and legal sources
Inspector T C King quashed enforcement appeal APP/A2280/C/24/3352630 on 4 November 2026. The appeal decision is also available on AppealBase. The principal statutory provisions are sections 173, 174 and 176 of the Town and Country Planning Act 1990. Quotations are from the Inspector’s published decision.
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