Summary: The Council wrongly told Ms B her property was curtilage listed. Ms B complains that this meant she applied for planning permission and listed building consent for work to the property which were unnecessary. She says she has incurred costs in carrying out work the Council required because of the listed status. And that building works to the property were limited and altered to meet the requirements of the listed status.

The complaint

1. Ms B complains the Council wrongly told her that her house was curtilage listed. This meant she applied for planning permission and listed building consent for work to the property which were unnecessary. She says she has incurred costs in carrying out work the Council required because of the listed status. And that building works to the property were limited and altered to meet the requirements of the listed status.

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The Ombudsman’s role and powers

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. 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

4. I considered the complaint and documents provided by Ms B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.

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What I found

Overview events

5. Ms B lives in a house which is in an historic park and garden. The key issue is the determination of whether the house is curtilage listed by virtue of its position in the garden. Before Ms B bought the house, and afterwards when she approached the Council about any proposed works, the Council maintained it was curtilage listed. The Council has now accepted it is not, that the advice it gave was inaccurate and that she was advised to make unnecessary planning applications. The Council has apologised and refunded the cost of the applications and the pre-application planning advice fee. It has not accepted the other elements of remedy requested by Ms B. I will refer to those below.

Fencing

6. Ms B wanted to erect a boundary fence. She applied for planning permission for a close boarded fence. The Council would not approve a close boarded fence so Ms B amended the application to a post and wattle fence. The Council approved the application. The materials for the fence were not specified in the planning permission.
7. Ms B’s landscapers sent a photograph to the Council showing woven oak panels. The Council rejected them and said the minimum acceptable standard would be willow or hazel wattle panelling. The Council said the oak fencing proposed would be unlikely to receive planning permission. Ms B erected hazel wattle panelling.
8. In responding to Ms B’s complaint the Council said the fencing would have been allowed under the General Permitted Development Order (GPDO). This means it would not need planning permission. The Council refunded the fee Ms B had paid for the planning application. The hazel fencing had deteriorated badly so Ms B replaced it with a 1.8m high close boarded fencing.
9. In responding to my enquiries about the complaint the Council said that when it said the fencing would not need planning permission it had not visited the site. It now considers the fence Ms B has erected to be adjacent to a private highway and so would need planning permission. Ms B told me there had been an enforcement investigation by the Council but the Council said this was not the case. There is an enforcement investigation listed on the Council’s website as closed in December 2018 about the erection of a new fence. The reason given for closing the investigation was officer justification. In responding to me the Council has said it would not be expedient to take planning enforcement action in respect of the fence that has been erected.
10. As well as the initial fault by the Council in saying the property was curtilage listed there is further fault in the inconsistent responses the Council has given on the planning status of the fence.

Planning application for the house

11. Ms B bought the property intending to do works to it. She obtained planning permission and listed building consent and carried out the approved scheme. She says that had she known the property was not listed she would either have proceeded under the permitted development rights or she would have applied for a different scheme. In either case, a different scheme would have involved a different entrance which would have been more in keeping with the property.
12. The Council has commented that in considering any planning application it would have to consider the impact on the listed park and garden.

Complaint handling

13. Ms B raised her concerns that the Council was being inconsistent in how it was treating the properties on the estate in August 2017. In August 2018 the Council accepted her property was not curtilage listed. Ms B wrote in September setting out the costs she had incurred which she considered was as a result of the wrong advice.
14. Ms B chased a response in November and December and then complained to us in January 2019. In February the Council told us the complaint process was not completed. At the end of February the Council sent its final response to Ms B. It accepted fault and refunded the planning application fees but did not accept it should recompense her for the fence or the loss of development opportunities.
15. There was unacceptable delay by the Council in responding to Ms B’s correspondence. It was also wrong to say to us in February that the complaint process was not exhausted when that was only because of the Council’s failure to respond. The Council has apologised for its failings in how it handled the complaint.

Injustice and remedy

16. Where there has been fault we look to the Council to put people back in the position they would have been in had the fault not occurred. Here that is not possible as Ms B acted on the advice from the Council and that affected the work she did to her property.

Fence

17. Ms B wanted to erect a 1.8m high close boarded fence. She did not do so because the advice from the Council was it would be unacceptable as the property was curtilage listed. She instead erected the hazel wattle fencing. Ms B considers that at the time, 2014, the GPDO that was in place would have meant she could have erected the close boarded fence without needing planning permission. This is because the GPDO allowed for the erection of a 1.8m fence provided it was not next to a highway. And the guidance at the time said a highway did not include a private highway.
18. In response to this point the Council has said “There are judgements which define an access way as a highway if it serves more than a single property. It is immaterial as to whether the access way is private or not.” The Council has not provided any detail of the judgements to which it is referring. So I do not consider this outweighs the guidance that was in place which indicates that permitted development allowances would have applied to the 1.8m close boarded fence.
19. The hazel fencing lasted five years before degrading to such an extent that it was no longer safe for Ms B’s young children and required replacement. The cost of the hazel fencing was £5734 and was in place for four years. Had Ms B erected the close boarded fence at the outset, as she wished, it would have lasted for longer. I therefore consider the Council should reimburse her the cost of the hazel fencing. I have considered whether the figure should be reduced to reflect the fact that Ms B did have four year’s use of the fence but I think that is more than outweighed by the additional inconvenience and time and trouble she has been put to in having to replace the fence.
20. However the fence and gates Ms B has now erected does not have planning permission. Nor do I consider it to be allowed under the GPDO. This is because the guidance that is now in place says the restriction on erecting a 1.8m high fence next a highway includes a private highway. The Council has agreed it will write to Ms B to confirm it will not take enforcement action against the fence and gate that has been erected.

The development

21. Ms B has provided details of the form of development she would have preferred. I have had correspondence with the Council about whether the development that was approved and the preferred scheme would have been permitted development at the time of the application in 2015. The Council’s position was that it would have required planning permission. But following my further enquiries and my conversation with a senior officer the Council accepted that it was not clear-cut and it was likely that neither scheme would have needed planning permission in 2015.
22. This means that if the Council had not wrongly considered the property to be curtilage listed Ms B would have been able to build her preferred scheme without requiring planning permission from the Council. I consider that is an injustice to Ms B and to remedy that the Council should pay her £1000.

Agreed action

23. The Council will pay Ms B £6734 and write to her confirming that will not take any planning enforcement action against the fence and gates within one month of the final decision.

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Final decision

24. The Council wrongly told Ms B her property was curtilage listed. The Council has apologised for the error but it should also make a payment to her to recognise the cost of erecting a fence that has failed and not being able to construct her preferred scheme.

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Investigator's decision on behalf of the Ombudsman