Council use estate agent images in decking battle

Twm Owen Local Democracy Reporter

A council has used photographs from estate agent websites to win a battle with a homeowner over garden decking.

Belinda Klugah Cavill had claimed the raised platform in the garden of her three-storey home at Woolpitch Wood in Bayfield, Chepstow had been in place when she bought the property in 2023 and first put up by the previous owner in around 2004 or 2005.

That would have meant the decking was exempt from enforcement action, due to the amount of time it had been in place, despite being higher than 30cm above the ground.

Ms Cavill also had a signed statutory declaration, from the former owner, supporting the claim though it also referred to repairs and parts of the decking having been upgraded.

Officials at Monmouthshire County Council however turned detectives and uncovered photographs of the decking on estate agents’ websites that showed differences in the decking when the property was advertised, in June 2023 and when it was listed on Rightmove in February 2013.

The council had originally launched an investigation into the decking following a tip off in 2023 that it had been put two years earlier in May 2021. That led to it issuing an enforcement notice in March this year which required Ms Cavill to remove parts of the decking and related material within six months.

When Ms Cavill appealed against the enforcement notice the council claimed it could no longer produce the tip off which sparked the probe, but did provide the photographs it had found trawling property websites.

Evidence supported

Independent planning inspector Richard Jenkins, who considered the appeal on behalf of Planning and Environment Decisions Wales, said the evidence supported the council’s position.

Mr Jenkins stated in his written report: “The LPA (local planning authority) has provided a screenshot from an online platform that specialises in property sales, rents and values that appears to confirm that the decking attacked by the notice was substantially complete in June 2023. This is then contrasted with a screenshot from a similar online platform that appears to illustrate a materially different decked area in 2013.”

Aerial photography, that “also appears to demonstrate a material difference in the extent of the decked area between the years 2020 and 2023” was also provided.

Mr Jenkins stated: “I am satisfied that the evidence is sufficiently clear to confirm the council’s position that the decking has materially changed since the original decked area was constructed. The decking subject of the appeal has not, therefore, been in situ for a period that exceeds 20 years as alleged by the appellant.”

Proof

He acknowledged the evidence “falls short of categorically confirming” the work took place in May 2021 but said it doesn’t contradict the council’s case and there was nothing that would lead him to conclude it was “substantially complete prior to the date of immunity”.

The report stated the burden of proof is on those appealing a decision to issue an enforcement notice and there was no substantive evidence “to discredit the Council’s critical argument” that while there may have been a decked area before May 2021 the new decking was a “fresh breach of planning control”.

Mr Jenkins dismissed the appeal but did amend the enforcement notice and said subject to his corrections the notice should be upheld.

Monmouthshire council had claimed it was unable to provide the original complaint as “it no longer has the necessary consent to share this evidence as part of the appeal proceedings” but wanted to proceed with the enforcement action in light of the alleged “public harm”.