East Lothian fence privacy row

Thursday January 21st 2021

East Lothian Council

Written by Local Democracy Reporter, Marie Sharp

A homeowner who claimed that lowering his garden fence would breach his family’s human rights has lost his battle to keep it in place.

Jeff Marshall appealed against East Lothian Council planners’ demand he lower the fence by 40 centimetres, claiming it was a breach of European Court of Human Rights rulings on home and privacy because it meant people could look into his family’s bathroom.

The homeowner had applied for retrospective planning permission for the fence at his house in the conservation village of Inveresk but was told that the fence, at 1.79metres high, was “alien” to the character of the surrounding area.

Planners ordered him to reduce the height of the fence, and accompanying gate, to 1.3 metres, sparking his appeal.

However, a meeting of the council’s Local Review Body rejected his claim that lowering the fence would impact his family’s privacy.

And Councillor John McMillan said he did not believe people in the picturesque village wanted to look into the house.

He said: “I do not think many people in that area would want to go and look in. I think a lower level of fence would mean people would not be curious.”

In a statement to the Local Review Body, Mr Marshall had argued: “The fence was added for privacy and to stop people looking into our house; given the layout of the house, people could see into our bathroom from the street, as well as other rooms.

“We believe our right to privacy has not been considered here.

“The vast majority of houses in the village have walls that are considerably taller than our fence; we should be allowed the same privacy.”

And he pointed to European Court of Human Rights (ECHR) articles regarding home and privacy, adding: “The original decision has failed to account and instead placed the rights of others to intrude upon my privacy and security, as well as unfairly decided the look of my house is more important than my ECHR rights.”

Planning officers, however, described the fence and gate as unacceptable in the conservation village.

They said: “They are imposing in character and appear alien and visibly different to the stone walls and hedging enclosing the roadside boundaries of nearby properties and are inappropriate for use on the front roadside boundary of the garden of the house.”

The review body was told that if they supported the planning officers’ ruling, other options were available to Mr Marshall, including replacing the fence with hedging, applying for permission to build a stone wall or “putting up blinds” on the windows.

Mr McMillan backed the planning officers’ decision, saying he did not think the height of the fence and gate was appropriate for its location.

Fellow councillor Neil Gilbert agreed, describing the fence as “incongruous”.

Councillor Katie Mackie, who chaired the review body, also supported officers, pointing out that anyone who bought a property in a conservation area had to be mindful of the nature of the village they lived in.

She added: “I think it is out of place and it is not in keeping with the rest of the street.”

The appeal was unanimously rejected.

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