Six months ago my neighbour applied for and was granted planning permission to develop a large complex that abuts my property. As I was sick at this time, I did not pay any attention as I had a lot to contend with. The other day I looked at the plans and I noticed that they sought to replace our mutual boundary hedge (full of beautiful old mature trees – oak, ash, beech, etc) with a 2.4m high concrete block wall. They did not consult with me in any way prior to their application. The planning permission states that "the development shall take place with the plans submitted". Does this mean that they must now remove our mutual boundary hedge? Can they do this despite the fact that I was not consulted on the matter?
You describe the hedge as a “mutual boundary hedge”. This means that it is a party boundary and that you have joint ownership. Therefore your property (legal) boundary runs through the centre of the trunks/stems of the hedge. One party cannot substantially interfere with or remove a party wall, hedge or fence without the consent of the adjoining owner.
Your neighbour may feel that they can proceed with the development, including the removal of the hedge now that they have planning permission. However the planning application form contains a question on the ownership of the site. If the site, or portion of the site (as in your case), is not in the ownership of the applicant, he/she is required to submit documentation indicating the consent of the owner’s permission for the development of the relevant portion of the site. This requirement has implications for the proposed development as you did not give consent for the removal of the shared boundary hedge and trees.
To protect your interest it is imperative that you act immediately. Since the planning permission has been granted, I suggest that you consult your solicitor. You should also check the planning file, note the reply given to the question or questions relating to the legal ownership of the site and provide this together with the planning file reference number to your solicitor.
It appears that the time period for lodging an objection has expired, therefore the Planning Authority should be formally notified, without delay, that you did not give consent for the removal of the hedge which is in your joint ownership.
It is also advisable to obtain your deed map as you may require it to verify the location of your legal boundary in the event that the issue becomes contentious. However, irrespective of the position of the boundary as indicated on the deed map, the fact that the hedge has been accepted as the mutual boundary gives you an entitlement to consider it as the legal boundary. Your solicitor will advise on your entitlement in the event of conflict between the actual position on site and on the deed map. The length of time the hedge has been accepted as the mutual boundary is relevant.
It is essential that you act without delay as, in order to secure the site, the development work may commence with the removal of the hedge and construction of the 2.4m wall.
Patrick Shine is a Chartered Geomatics Surveyor, a Chartered Civil Engineer and a member of SCSI, scsi.ie