F I F E
C O U N C I L
Central Fife Area Development Committee
17th April 2007
Agenda Item No. 6
1 KINKELL AVENUE, GLENROTHES
1.0
INTRODUCTION
1.1
The purpose of this report is to advise Members of an unauthorised change of use of an
area of public open space into private garden ground and the erection of a wooden fence
to enclose the garden ground at 1 Kinkell Avenue, Glenrothes.
1.2
The existing roof tiles of the property at 1 Kinkell Avenue, Glenrothes have been treated
and painted in a bright colour of red paint which does not blend in with the streetscene.
Planning permission is required if there are changed to a roof, including the colour of a
roof, that materially alters the appearance of a dwellinghouse.
1.3
The purpose of this report is also to seek approval for enforcement action should that prove
necessary as no permissions have been granted for either the change of use or the roof tile
colouring.
2.0
FINANCIAL IMPLICATIONS
2.1
In the event of failure to submit a planning application or if any subsequent planning
application is refused planning permission then direct action may become a consideration.
In such a case there would be financial implications, albeit subject of legal action to recover
the costs.
3.0
LEGAL IMPLICATIONS
3.1
Section 127 of the Town and Country Planning (Scotland) Act 1997 provides Planning
Authorities with the Power to serve an Enforcement Notice on the owner or occupier of the
property specifying the steps which require to be taken to rectify the matters which are a
breach of planning.
4.0
BACKGROUND
4.1
Glenrothes Development Corporation sold an area of ground, now occupied by the
residents of Kinkell Avenue/Brahan Park Glenrothes, in 1973 under a feu disposition with
conditions attached stating that certain areas were to be retained as public open space.
4.2
The area of public open space, adjacent to 1 Kinkell Avenue within the feu disposition by
G.D.C. was subsequently included in a conveyance to K.D.C. in 1995. As the feudal
system was abolished on 28 November 2004, Fife Council are now unable to enforce any
such burdens against any feuar as the superior.
4.3
The present owners have enclosed the area of public open space with fencing following an
enquiry to the Planning Section in 2005. Although the issues raised by the complainants
relate to feu disposition matters, the fence proposed was permitted development and did
not require planning permission.
4.4
The Kinkell Avenue and Brahan Park Action Group have sought the opinion of barristers
and are in the process of taking legal action against the owners of 1 Kinkell Avenue with
regard to the open space issue. This matter has not been resolved to date.
4.5
In April 2006 the owners painted the roof of the property using “the Protex System” which is
an exterior protective and decorative coating applied to the existing roof tiles. A number of
complaints were received as the original roof of red tiles faded to a shade of brown in all 40
houses in the estate and the colour applied was a pink/red colour.
5.0
DISCUSSION
5.1
Following receipt of a letter and brochure from Protex Systems date 16 March 2006, a
response from the Planning Section dated 22 March 2006 stated that planning permission
was not required to use the protective and decorative coating on the existing roof. The
response was based on a telephone conversation with the Managing Director of Protex
who confirmed that the colour of the roof would be the same as existing.
5.2
A planning application was submitted for the proposed erection of a 2 storey extension to
the dwellinghouse in January 2006. At the same time the boundary fence was erected to
enclose the amenity land shown on the Feu Disposition. Five letters of objection were
received in respect of the proposed extension and the erection of the fence.
5.3
Given that the Kinkell Avenue and Brahan Park Action Group had sought legal advice and
were taking the property owners of 1 Kinkell Avenue to court, the decision on the proposed
extension was withheld as agreed with all parties. A date has not yet been decided for the
court case.
5.4
Correspondence was entered into between the Action Group, Local MSP, Local Member,
Law and Administration Service and the Planning Section. Meetings were convened and
site visits carried out regarding Tree Preservation Orders on the property, the Feu
Disposition issue, an alleged business activity and the colour of the roof tiles. The property
owner submitted photographic evidence of a number of properties in the area which had
been re-roofed with brighter shades of orange, yellow and red, none of which had applied
for planning permission.
6.0
REASONS FOR ENFORCEMENT
6.1
Planning permission is not required for the erection of the fence around the boundary at 1
Kinkell Avenue, Glenrothes as it less than one metre in height above the existing ground
level and is permitted development. However planning permission is required for the
change of use from public amenity space to private garden ground.
6.2
If the legal action taken by the Kinkell Avenue and Brahan Park Action Group is successful,
the fence will legally require to be removed. However if the decision is in favour of the
property owners and the fence is to be retained, the submission of a planning application
will be pursued.
6.3
Planning permission is required to change the colour of the roof which materially affects the
appearance of a dwellinghouse. The impact on the appearance of the property is due to
the paint colour against the original tiles of the adjacent semi-detached property which has
weathered over a number of years.
7.0
RECOMMENDATION
7.1
It is recommended that authorisation is granted to serve a Planning Enforcement Notice in
the event that a planning application is not submitted for a change of use to garden ground
or the court case is found in favour of the Action Group and the fence has to be removed.
7.2
It is also recommended that no action is required to alter the colour of the roof. The impact
of replacing existing roofs with new tiles of the same colour has a similar impact on the
appearance of the property when compared to adjacent properties whose tiles have aged
and weathered. No planning permission has been pursued in these situations.
Keith Winter
Head of Development Services
Fife House
North Street
Glenrothes
Author: Eddy Thomson, Planning Enforcement Officer, telephone 01592 417609
Date: 23 March 2007
Ref: ET/AH
BACKGROUND PAPERS
Under Section 50(d) of the Local Government (Scotland) Act 1973 no background papers were
relied upon in the preparation of this report: