Summary: Mr X complained about the way the Council dealt with a fence a neighbour erected. He alleged it encroached upon a right of way. We found there was no fault in the way the Council reached its decisions.

The complaint

1. Mr X complains about the way the Council responded to concerns about a fence his neighbour erected in 2014. Mr X says his neighbour’s fence encroaches into the lane he lives on. It reduces the width of the lane which causes him access issues and reduces room for pedestrians which causes safety concerns.
2. Mr X complains that when he first raised the issue in 2014/15 the Council told him it had no responsibility to consider it. Mr X became aware in late 2017 that the Council had considered taking planning enforcement action in 2016. He complained the Council should have considered the issue when he first raised it and he was felt the Council’s decision not to take enforcement action was flawed.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Mr X and considered the information he provided. I made enquiries of the Council and considered its response.
7. I exercised discretion to consider the events of 2014/15 because at that time Mr X says he was told the Council had no role in considering the issue. He only became aware this was incorrect in 2017 when he was advised the Council had investigated a planning enforcement report. I also took account of some of Mr X’s circumstances that meant he did not pursue the issue sooner.

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What I found

8. The entrance to Mr X’s driveway is down a lane which is a designated right of way. Mr X says for years the lane has been around 4 metres wide. He says a watercourse/drainage channel runs down the opposite side of the lane to his home.
9. Mr X complains about a fence erected by a neighbouring property, backing onto the opposite side of the lane. In 2014 his neighbour effectively extended his garden by erecting a fence around 3 metres beyond his previous boundary. Mr X understands his neighbour fenced in land that is not within his neighbour’s ownership.
10. Because the fence was further back, it reduced the width of the lane from what was previous 4m to around 2.7m. Mr X explained this caused difficulty for him accessing his property. Because the lane was used by pedestrians and used to access several properties, the reduction in width was also dangerous. In addition, Mr X noted the fence cut across the drainage ditch, blocking it. This re-routed water from it into the lane. This exacerbated flooding issues.
11. Mr X says he contacted the Council in 2014/15 to complain but he was told the Council had no power to intervene and it was a civil matter. He believed the Council could not act. However, in late 2017 he became aware the Council had received an enforcement report from another member of the public and its planning committee had considered whether the Council should take action.
12. Mr X complained to a councillor about the access issue and danger to pedestrians. He was unhappy the Council told him it could not act previously. Mr X also complained the Council’s decision was wrong. He could not understand how the Council would allow his neighbour’s boundary fence to be moved, partially blocking the lane.
13. The Council told us it had sympathy with Mr X’s situation, but it had reviewed its files and it considered the planning enforcement issue had been dealt with properly.
14. The planning officer’s enforcement report explained a member of the public had complained the fence encroached onto a right of way. The report noted that a site visit had taken place. The officer stated the fence was a breach of planning control because any fence, over one metre tall, adjacent to the highway requires planning permission. Mr X’s neighbour did not obtain planning permission before erecting the fence.
15. However, the Council explained it does not automatically take enforcement action to remedy a breach. It referred to the National Planning Policy that requires enforcement decisions to be proportionate.
16. In June 2015 a planning officer wrote a report which was referred to the planning committee. It noted the County Council confirmed the right of way was regarded as 2.7m wide. So, the fence left sufficient room not to interfere with it. The officer stated highways officers had not raised concerns about safety. They also noted the appearance of the fence was acceptable. So, the planning officer decided, if a planning application had been submitted for the fence, it would most likely have been approved. For these reasons, the Council’s planning committee decided it was not appropriate to take planning enforcement action.
17. Mr X provided an email from the County Council’s Rights of Way Officer from May 2015 confirming he had asked his neighbour to remove the fence. The Officer stated the removal was delayed following the intervention of a councillor. The Borough Council provided a copy of a letter sent by the Rights of Way Officer setting out his position in June 2015. It stated following his initial view, he conducted more research. His research about the footpath found the maximum recorded width was 2.7m. Despite his belief that the position of the fence encroached beyond the neighbour’s boundary, the officer stated his role concerned rights of way only. So, he did not intend to take further action. This was because the footpath next to the fence was still 2.7m wide.
18. The County Council holds a definite map and definitive statement which describes all rights of way. The entry for the footpath in question describes its location and goes on to state that it has a width of between 1.2m and 2.7m. This confirms the research referred to by the Rights of Way Officer.
19. In its response to Mr X’s complaint the Council addressed other concerns he raised. It stated it could not consider land ownership issues as part of the planning process. It noted what Mr X stated about flooding. However, it did not consider the fencing of a relatively small area was responsible for flooding his property. The Council noted the difficulties with manoeuvring, but it stated unless someone owns the land in question or the land is adopted public highway they do not have rights to utilise the land for this purpose.

The National Planning Policy Framework (NPPF)

20. The NPPF states “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.”

Analysis

21. A breach of planning control occurs when someone has carried out ‘development’ without the required planning permission. As the fence erected by Mr X’s neighbour did not have planning permission and the fence did not benefit from permitted development rights, it was a breach of planning control.
22. Councils have to investigate reports about breaches of planning control. However, they are not obliged to take formal enforcement action. The NPPF requires councils to determine what action (if any) is appropriate and proportionate on a case by case basis.
23. There is no evidence to show what contact Mr X had with the Council in 2014/15 or what officers told Mr X. So, I cannot reach a view about whether Mr X was given incorrect advice about the Council’s role at the outset. However, I have been able to consider the way in which the Council decided, in 2015, not to take planning enforcement action in respect of the fence.
24. In 2015, the Council would not have grounds to refuse the application because of the allegation the fence was not positioned correctly. They could not refuse the application on the basis the applicant extended their garden to include land they do not own. This is because the planning system does not consider land ownership or boundary issues.
25. However, the extent to which the fence obstructs or diminishes a right of way is a material planning consideration. There is evidence the Council considered this and took account of comments by the Rights of Way Officer at the County Council when reaching their decision. The Rights of Way Officer considered the information available from the Definitive Map and Statement, but decided he had no grounds to object or require action by the applicant because the width of the path was still sufficient.
26. I recognise that prior to the installation of the fence, more room existed for Mr X to manoeuvre along the lane and into his drive but the Definitive Map only specifies the path must be 2.7m wide and there are no planning grounds for the Council to refuse the application to protect Mr X’s private rights of access.
27. Based on the information I have seen, I found no fault in the way the Council reached its decision not to take planning enforcement action in this case.

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Final decision

28. I found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman