Summary: Mr X complained the Council failed to take action after a neighbour erected a fence on a bridleway. Mr X said the fence obstructed access to his property. The Council investigated and found a breach of planning control. However, after seeking information from the County Council’s Rights of Way Officer and the Fire Service, it used its professional judgement and decided not to take formal enforcement action.

The complaint

1. Mr X complains about the Council’s failure to take action after a neighbour erected a fence on a bridleway and obstructed access to his property.
2. Mr X says larger vehicles, such as delivery vans, cannot reach his property and he is particularly concerned that a fire engine could not get past.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mr X complained to the Council about a section of fence erected by his neighbour. The small section of fence is of a post and rail design. The Council completed an enforcement investigation and found there was a breach of planning control as the neighbour should have sought planning permission before erecting the fence.
7. The Council explained to Mr X that after establishing a breach of planning control, its next step was to consider whether it was appropriate and proportionate to pursue formal action.
8. In its written response to Mr X’s complaint, the Council explained the access to Mr X’s property lies adjacent to a bridleway. It contacted the County Council’s Rights of Way Team who confirmed the fence did not obstruct the bridleway. The Rights of Way Officer also confirmed she had discussed the fence with the Fire Service and it raised no concerns about the fence obstructing access to Mr X’s property.
9. The Council says it took this information into consideration along with the design of the fence and concluded it was not expedient to take formal enforcement action. It explained to Mr X that to take enforcement action it must demonstrate planning harm and that it is acting in the public interest and not the interest of private individuals. It said there was no evidence the fence would obstruct public access of the right of way or obstruct emergency vehicles carrying out duties.

Analysis

10. Mr X is unhappy with the Council’s decision not to take enforcement action. He says the fence obstructs access to his property and he should not have to rely on costly private legal action to resolve the issue. Mr X says there is a covenant covering this issue.
11. I have seen photographs of the neighbouring property and the fence. The photographs show there is a clear access to Mr X’s property. However, one photograph shows a larger van having difficulties turning the corner to Mr X’s property because of the fence.
12. I am satisfied the Council has properly considered the issue of fence. It investigated the matter and found a breach of planning control. It then properly considered whether to take formal enforcement action. There is no obligation on a council to take enforcement action even when a breach of planning control is identified. It must consider the relevant issues and then uses its professional judgement to decide if enforcement action is expedient.
13. To investigate the issue of the unauthorised fence, the Council carried out a land registry search and was satisfied the fence was built on the neighbour’s land and not on the bridleway. The Council then contacted the Rights of Way Officer who raised no concerns about the fence causing an obstruction. The Officer also confirmed the Fire Service had no concerns. She said the Fire Service explained the bridleway is over 4 metres wide and a fire engine is approximately 2.5 metres wide with a hose reel that extends to 60 metres. She also reported that the Fire Service said it would knock the fence down it if was in the way.
14. I appreciate Mr X is unhappy with the position of the fence however I am not persuaded there is fault in this case. The Council, after carrying out appropriate investigations, decided it was not expedient to take enforcement action. The fact Mr X disagrees with the Council’s professional judgement is not evidence of fault.

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Final decision

15. I will now complete my investigation as there is no evidence of fault in this case.

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Investigator's decision on behalf of the Ombudsman