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Worcestershire County Council (21 000 007)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 26 Oct 2021

The Ombudsman's final decision:

Summary: Mrs J complains about a failure by the relevant local authorities to take action against her neighbours who have allegedly encroached highway land and breached their respective planning permissions. We have not seen any evidence of fault by the highway authority with respect to how it determined the ownership of the land in question. Further, there is no evidence of fault by the planning authority in how it decided to not take discretionary enforcement action. The law says we cannot question the merits of a council decision in the absence of fault. There was however evidence of fault in the way the highway authority considered Mrs J’s complaint. This caused her an injustice and so we have recommended a small financial payment be made.

The complaint

  1. The complainant, who I refer to as Mrs J, is making a complaint about the highway authority for failing to stop her neighbours on both sides appropriating highway land. She says her neighbours have done this by extending the fence line. Specifically, Mrs J alleges the following:
      1. Her neighbours have allowed the land they have taken to become overgrown with hedges and foliage which is compromising the safety of road users and pedestrians due to reduced visibility on the main road.
      2. The planning authority refused her application for planning permission for a separate living area at the rear of her property. She says this was refused due to the overgrown hedges and foliage for which the highway authority failed to act against.
      3. By not enforcing its boundaries, the highway authority has caused her significant expense during the process of trying to gain obtain planning permission.
  2. Mrs J wants the highway authority to enforce its boundaries and the cutting back of the obstructive hedges and foliage. Further, she wishes to be reimbursed for the added expense she has incurred in seeking planning permission.

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What I have investigated

  1. Importantly, Mrs J’s complaint concerns two separate authorities. The first is Worcestershire County Highway authority (the highway authority) which is responsible for determining the ownership of the land in question. The second is Malvern Hills District Highway authority (the planning authority) which is responsible for planning consents and enforcement of planning conditions.
  2. I have investigated all the above matters with the exception of 1(b). This is because Mrs J had a right of appeal to the Planning Inspectorate which acts on behalf of a Government minister. The law says I cannot investigate in these circumstances, unless it was unreasonable for her to exercise her appeal.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
  3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).

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How I considered this complaint

  1. I have reviewed Mrs J’s complaint to the highway authority and Ombudsman. I have also had regard to the responses of the highway authority, supporting documents and applicable legislation and policy. Both Mrs J and the highway authority received an opportunity to comment on a draft of my decision. Each of their comments were considered before a final decision was made.

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My findings

Background and legislative frameworks

Planning permission

  1. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district Highway authority or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a period of consultation. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
      1. delay by an authority in deciding an application for planning permission;
      2. a decision to refuse planning permission;
      3. conditions placed on planning permission and;
      4. a planning enforcement notice.

Breach of planning control

  1. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 (“the TCP Act 1990”), as follows:
      1. The carrying out of development without the required planning permission; or
      2. Failing to comply with any condition or limitation subject to which planning permission has been granted.
  2. Where there is a breach of planning control, the authority may serve an Enforcement Notice if it is expedient to do so under Section 172 of the TCP Act 1990. It is for the planning authority to decide whether it is expedient to act. Importantly, enforcement action is discretionary and a local authority cannot take enforcement action against itself. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.

‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and act where appropriate.’’

The Planning Inspectorate

  1. The Planning Inspector acts for and on behalf of the responsible Government minister. The Planning Inspector considers appeals about delay in deciding an application for planning permission and a decision to refuse planning permission. The body also considers appeals about conditions placed on planning permission and a planning enforcement notice.

Ordnance Map Survey (OMS)

  1. Ordnance Survey is Great Britain’s national mapping agency. It carries out the official surveying of GB, providing the most accurate and up-to-date geographic data, relied on by government, business and individuals. It also produces a selection of scales giving a clear depiction of the physical landscape. Further, it details a range of geographical features, landmarks, field boundaries, valley contours, summit heights, rivers, roads, railways, villages and towns.

Chronology of events

  1. In late 2015, Mrs J complained that her neighbours had appropriated highways land. This led the highway authority to conduct enquiries.
  2. In January 2016, the highway authority emailed Mrs J advising that her neighbour on the side of her driveway (Land A) had appropriated highway land. It said it would issue a notice for the removal of fencing and foliage.
  3. Some time after, the highway authority undertook further enquiries and found that Land A was not highways land. It therefore did not issue a notice to Mrs J’s neighbour. This change in position was not communicated to Mrs J.
  4. In April 2019, Mrs J employed the services of a traffic consultant who compiled a report concluding that Land A was highway land.
  5. In May 2019, Mrs J complained to the highway authority about the encroachment of highway land by her neighbours on the other side of her property (Land B). She said both neighbours had now allowed hedges and foliage to become overgrown.
  6. In June 2019, Mrs J also employed a planning consultant. The consultant produced a report concluding there had been a breach of panning law by her neighbour in respect of Land A. This was on account of the hedges and foliage restricting visibility to the detriment of road safety. A highway authority officer visited Mrs J and expressed they did not believe Land A was highway land.
  7. Later in the month, the highway authority responded to Mrs J’s complaint advising that it needed to conduct an investigation to determine whether Land A was in fact highway land. It also said it was unable to take enforcement action against her neighbours until it had resolved this question.
  8. In October 2019, the planning authority refused planning permission. The planning refusal notice gave two reasons for the refusal of the application, as follows:
      1. The proposal would result in an intrusive form of development occupying a prominent position in the street-scene and harming the rural character and appearance of the area. The proposal would also have an overbearing impact on local residents and harm the living conditions of neighbours as result of direct overlooking into the existing garden area.
      2. The existing access has severely limited visibility in both directions, and the proposal of an additional dwelling would intensify vehicular movements at a substandard access increasing the levels of hazard and danger to all users of the road.
  9. Sometime after, Mrs J escalated her complaint to stage two of the highway authority’s complaint policy and procedure. She considered her planning application had been refused due to a failure by the highway authority to take action against her neighbours.
  10. In February 2020, the highway authority issued its final complaint response to Mrs J. It concluded that Land A was not highway land, though would need to conduct further enquiries to ascertain the status of Land B. It also said the obstruction to road visibility was only one reason for planning authority’s decision to refuse Mrs J’s planning application. It said the other reason was because the proposal may have the effect of harming the rural character of the area.
  11. In addition, the highway authority acknowledged failings in its handling of Mrs J’s complaint. It said some responses from the highway authority were only forthcoming when prompted by Mrs J. In addition, the highway authority accepted that while it did address Mrs J’s complaint with respect to Land A, it had failed to properly address the issues in connection with Land B. It also said its stage one response failed to add anything to which Mrs J already knew.
  12. Separately, the investigation report also stated that it was clear the neighbouring owners of Land A and Land B are potentially in breach of planning law. This is because both had allowed hedges and foliage to become overgrown, potentially compromising the safety of road users.
  13. Mrs J has since confirmed her neighbour on the side of Land B has reduced the foliage size and fitted new fencing in the area. She says this has led to improved visibility in the area.
  14. In addition, Mrs J is submitting a new planning application to the planning authority given the improvement of visibility between Land A and Land B.

My assessment

Time limitations

  1. By law, I cannot investigate any issue which occurred more than a year from the complainant becoming aware of the problem. I do however have the authority to exercise discretion and investigate where there are good reasons to do so.
  2. In application, Mrs J first notified the highway authority of encroachment in regard to Land A in December 2015. On the face of it, the complaint is late. However, Mrs J was misadvised by the highway authority when it said it was going to take enforcement action. The highway authority decided not to take enforcement action and failed to make Mrs J aware of this change. The issue is therefore ongoing and Mrs J has taken time to complain to the highway authority under its complaint policy and procedure. I am therefore exercising my discretion to investigate all the issues.

Ownership of Land A

  1. The highway authority found Land A was not highway land. I have no jurisdiction to questions the merits of a highway authority’s decision in the absence of fault. I have therefore limited my inquiry to deciding whether the highway authority’s decision was properly made and not subject to the procedural fault.
  2. My investigation found the highway authority used a number of methods to determine if Land A was highway land. First, the highway authority searched the 1884 OMS (see paragraph 14). It then cross-referenced the results with the Land Registry. This found the title boundaries of Mrs J’s neighbour on the side of Land A were consistent with the OMS and determined highway boundary. The highway authority then measured whether there was any deviation from these results by assessing where the boundaries fell on the ground. The highway authority found the difference between the OMS and where the boundary actually fell to be minimal. Further, the highway authority noted the OMS is not intended to be viewed at a scale larger than 1:1250, so it is not possible to be accurate when assessing a minimal deviation.
  3. In my view, the highway authority has undertaken a detailed assessment to determine the boundaries of Land A. I have not found any evidence of fault or procedural error by the highway authority in how it reached the decision that Land A was not highway Land. On that basis, I have no authority to question the merits of the highway authority’s decision, or that of its officers exercising professional judgement.

Ownership of Land B

  1. In addition, the highway authority has conducted highway limit research in respect of Land B to determine if this was highway land. The highway authority concluded it is not and has provided evidence which supports this position. Similarly, I have not found any evidence of fault or procedural error by the highway authority in how it reached the decision that Land B was not highway land. The same restriction I describe in paragraph seven therefore applies I have no discretion in this respect.

Enforcement action

  1. The highway authority’s investigation found it was clear both the owners of Land A and Land B may be in breach of planning law. This is because the evidence suggested that each had allowed foliage to become overgrown in breach of their respective and original planning permissions. Importantly, planning enforcement is a discretionary action available to the planning authority. That said, the National Planning Framework 2018 states local planning authorities should act proportionately in responding to suspected breaches of planning control. As a matter of procedure therefore, I would expect the planning authority to give consideration to enforcement.
  2. I have been provided evidence the planning authority did consider the matter of enforcement action. However, it felt that as the foliage had likely been overgrown for over ten years then it would not look to pursue this. Further, the planning authority also confirmed there had been past enforcement case for the same matter in 2016 relating to reduced visibility and this was not upheld. As said, enforcement action is discretionary and there is no evidence of fault by the planning authority in failing to consider the matter. On that basis, I have no authority to question the merits of the planning authority’s decision, or that of its officers exercising professional judgement.

Refusal of planning permission

  1. I recognise Mrs J is dissatisfied her application for planning permission was refused. However, there exists a right of appeal to the Planning Inspector in regard to this decision. The law says I have no jurisdiction to investigate any matter where there exists a right of appeal to a Government minister. The Planning Inspector acts for and on behalf of the Secretary of State for Levelling Up, Housing and Communities. There is no evidence to suggest it would have been unreasonable for Mrs J to exercise her right of appeal at the time. In fact, it appears she preferred to use the highway authority’s own complaints process. I will therefore not investigate this part of the complaint.
  2. In any event, it must be noted that the overgrown foliage from Land A and Land B was only one factor in the planning authority’s decision to refuse planning permission. The planning authority also said that the plans proposed by Mrs J would result in an intrusive form of development which could harm the rural character and appearance of the area. Had the planning authority taken enforcement action, it would still likely have refused Mrs J’s planning application.

Complaints process

  1. Mrs J clearly expressed in her complaint to the highway authority that she was complaining about appropriation of both Land A and Land B. However, the highway authority overlooked the issues relating to Land B in its stage one response and failed to give any new information to Mrs J. The highway authority has apologised for this. Further, the highway authority acknowledges that its officers only responded to Mrs J when prompted to do so. For these reasons, the highway authority’s complaints process was subject to fault and this caused Mrs J time and trouble, as well as distress and uncertainty.

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Agreed action

  1. To remedy the injustice caused to Mrs J by the fault identified, I recommend the highway authority pay her £150 within one month of this final decision.

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Final decision

  1. There is no evidence of fault by the highway authority with respect to how it determined the ownership of Land A and Land B. Further, there is no evidence of fault by the planning authority in deciding whether to take discretionary enforcement action against Mrs J’s neighbours. The law says I cannot question the merits of a local authority’s decision in the absence of fault. The restriction I describe at paragraph six applies. There was evidence of fault in how the highway authority considered Mrs J’s complaint. This caused her an injustice and so I have recommended a remedy.

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Parts of the complaint that I did not investigate

  1. I have not investigated the planning authority’s decision to refuse Mrs J’s application for planning permission. This is because Mrs J had a right of appeal to the Planning Inspectorate which acts on behalf of a Government minister. The law says I cannot investigate in these circumstances.

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Investigator's decision on behalf of the Ombudsman

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