Summary: Mrs Y complains on behalf of a local community group about the Council’s actions in relation to the fencing of local playing fields. Mrs Y says that officers acted without transparency and neutrality and have allowed the leaseholder to unlawfully fence the site and damage protected trees. The Ombudsman cannot question the merits of the Council’s decision where there is no evidence of procedural fault.

The complaint

1. The complainant, who I will call Mrs Y, complains on behalf of a local community group about decisions taken by the Council in relation to local playing fields. In particular, she says:
1. the Council has failed to act impartially and with transparency. Without good reason, the Council reversed a longstanding view that the fields in question are part of the curtilage of a Grade II listed building, consequently allowing the construction of a perimeter fence under permitted development rights;
2. when allowing construction of the fence, as landowner the Council incorrectly interpreted the school’s lease which prohibits the erection of any buildings or other structures. It also failed to ensure the school maintained existing community access rights as per the requirements of the lease; and
3. the Council wrongly decided that tree protection legislation was discretionary and failed to require planning applications for works to trees protected under Tree Preservation Orders (TPO)
2. Mrs Y says she and other local residents have experienced injustice because the community’s access to the site is now restricted.

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The Ombudsman’s role and powers

3. 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)
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. During my investigation, I have:
• discussed the complaint with Mrs Y by telephone and considered the information she submitted;
• made enquiries of the Council and considered its response; and
• consulted the relevant law and guidance around Permitted Development and Tree Preservation Orders.
6. I have considered Mrs Y and the Council’s comments to a draft of this decision.

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What I found

Key background information

7. Mrs Y complains on behalf of a local community group. The group’s purpose is to support and campaign for the protection of local playing fields situated within the grounds of a Grade II listed house. The land in question is currently owned by the Council. It has leased the land to a local school since 2011 for the purposes of providing space for outdoor physical education.
8. The school says it has been unable to use the land for the intended purpose since 2014. This is because the land, as per its lease, can be accessed and used by members of the public. The school felt this posed a risk to the health and safety of its pupils and consequently it ceased use of the land.
9. In 2018 the school outlined its proposals to erect a perimeter fence to allow its pupils to safely use the land for physical education. Mrs Y and others complain about the Council’s actions in relation to the school’s proposals, and specifically about an alleged lack of officer transparency and impartiality in the decision making.

Complaint a)

10. Permitted development rights are a national grant of planning permission which allow certain development without making a planning application to the Council as Local Planning Authority. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the main types of permitted development. Each permitted development right has conditions and limits; if a development does not meet the relevant criteria then planning permission is needed.
11. The order confirms that, under permitted development rights, gates, fences, walls or other means of enclosure can be built up to two metres above ground level; provided any part of is not adjacent to a highway. In which case, permitted development allows for a one metre enclosure only.
12. However, permitted development rights do not apply if the works, “…would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building”
13. Mrs Y complains the Council has, without good reason, reversed a longstanding view that the fields are part of the curtilage of a Grade II listed building. Mrs Y also considers the Council has reneged on a commitment it made by the Cabinet in 2010 not to allow installation of a fence around the playing fields. Mrs Y considers the Council, while acting without independence or transparency, has wrongly allowed the leaseholder to erect a two-metre fence under permitted development rights.
14. It is not the Ombudsman’s role to question the professional judgement of officers or question the merits of decisions made without procedural fault. Further, our role is not to interpret the law and decide whether, for example, a site falls within the curtilage of a listed building. Instead we consider the procedure followed by the Council when making decisions. We can investigate whether the Council has considered any relevant guidance, procedures or law. If we find evidence of procedural fault in the decision-making process, the Ombudsman may ask the Council to take remedial action.
15. In June 2018 the leaseholder, a local school, wrote to the Council seeking its support for a proposal to build a two-meter perimeter fence around the field. The leaseholder put forward their view that any such work would fall within permitted development rights and would not therefore need planning permission.
16. The Council responded in July, confirming its view that, “the proposals for fencing will require planning consent because the site is within the curtilage of the Grade II listed [building name removed] and permitted development rights are therefore extinguished. For the purpose of defining the curtilage we have referred to Historic England Advice Note 10 ‘Listed Buildings and Curtilage’ Page 7…”
17. The school requested a meeting with the Council to discuss its position. The meeting went ahead in August. During the meeting, the school’s planning consultant put forward their professional opinion as to why, in their view, the land does not fall within the curtilage of a listed building. The consultant followed up with a letter to the Council on 17 August, which further explained their professional opinion. In summary, the consultant said:
• the Council had misinterpreted the ‘Historic England’ advice note.
• the land had been used for varying purposes since 1947. Maps were provided to support this view.
• the land is currently used for playing fields and therefore not used as a historic landscape.
• the advice provided by the Council in July is inconsistent with advice given by a previous Conservation and Planning Officer.
18. Following receipt of this information, the Council decided to pass the matter to its internal legal services for a view. The Council received a response in September, which confirmed that, on the balance of probabilities, the fields were not within the curtilage of a listed building. In the solicitor’s opinion, permitted development rights would therefore apply. Mrs Y disagrees with the arguments and information put forward by the School’s planning consultant and in particular, she disputes the accuracy of the plans and comments on the historic use of the site they have provided.
19. The Council met with the school on 21 September and relayed a summary of its advice. The Council said that, although in its opinion the site benefitted from permitted development rights, it had decided to seek independent Counsel advice. The Council submitted its instructions to Counsel on the same day.
20. The Council received advice from Counsel on 28 September. I have considered the advice note in full, but due to legal and professional privilege, I cannot quote from the advice or share a copy of it with Mrs Y. In summary, Counsel agreed with advice provided by the Council’s solicitors. It concluded the land is not part and parcel of the listed building, does not form one enclosure and is therefore not within the curtilage of the listed building.
21. Before reaching this conclusion, the advice note shows Counsel considered relevant legislation, caselaw and planning guidance. Counsel also reviewed

• a summarised history of the site and the full terms of the lease between the Council and the School;
• the Town and Village Green application following this in 2011 and the High Court ruling in May 2018 which quashed the Council’s approval of that application; and,
• relevant historic maps gathered independently to those submitted by the School’s planning consultant.

22. The Council confirmed its final position in an email to the school on 29 November 2018, “I am happy to confirm that as Local Planning Authority we are satisfied that the playing fields DO NOT fall within the curtilage of the listed [building name]. This view is informed by a detailed assessment carried out by a BCC solicitor and supported by Counsel’s opinion. As a result, any means of enclosure would benefit from normal permitted development rights, subject to it meeting any relevant condition or limitation (including height) of those PD rights”.
23. I appreciate the strength of feeling Mrs Y, and others, have about the perimeter fence and the extent to which their access to the fields has been restricted. However, as stated above, the Ombudsman can only consider the procedure followed by the Council; we cannot make decisions based on fairness. Nor can we place ourselves into the role of an officer and replace their views with our own.
24. Mrs Y considers Council officers were unable to overturn a decision made in September 2010 to never fence off the land adjacent to the listed building. This decision was made during a Neighbourhood Partnership meeting in which Councillors agreed that a working group needed to be set up to help steer the future of the site so that it could continue to benefit all parties that used it. The Neighbourhood Partnership noted that ‘unfettered public access, to ensure open access as of right’ should continue.
25. The Council has explained representations made by Councillor(s) during Neighbourhood Partnership meeting in September 2010 did not constitute a formal Cabinet decision that remained binding on the Council. The Town and Village Green application made in 2011 appears to have flowed from the representations made at the 2010 meeting, the outcome of which was quashed by the High Court in 2018. The High Court judgement importantly confirmed a Planning Inspector’s earlier conclusion that public access to the land on the site was not unfettered or permissive as of right.
26. It is unfortunate that Mrs Y’s expectations were raised following the Council’s letter in July, which wrongly confirmed that the site did not benefit from permitted development rights. However, the Council was entitled to review its position once in receipt of further information from the school’s planning consultant, the Council’s internal solicitors and external Counsel. The change in view is not fault, and I have not seen any evidence of bias or lack of transparency as Mrs Y has suggested.
27. I find no fault in the way the Council made its decision about the status of the permitted development rights. This is a decision the Council was entitled to make, and its merits are not open to review by the Ombudsman.

Complaint b)

28. As landowner, the Council leases the land to the school under a 125-year lease. Mrs Y complains about the leaseholder’s lack of compliance with parts of the lease, the Council’s interpretation of the lease and its decision not to take action against the alleged breaches of the lease.
29. Clause 3.5.2 of the lease states the school is:

“Not to erect any buildings or other structures on the Property nor make any structural or external alterations additions or variations to any structures for the time being on the Property provided that with prior consent of the Landlord (not to be unreasonably withheld) the Tenant may replace or alter the structure of existing buildings on the property where such works are in pursuance or ancillary to the delivery of the Tenants physical education curriculum”

30. Mrs Y considers the erection of the fence is not only in breach of permitted development rights, but also in breach of the above quoted clause. She says the Council, as landlord, should intervene to enforce against this breach of lease.
31. Mrs Y also complains the leaseholder has breached the following clause:

“… and so that easements rights privileges or liberties which third parties enjoy in over or under the Property are not interfered with and that no nuisance is caused to the Landlord or any occupiers of any part or parts of the Retained Land”

32. In November 2018, the Council referred the matter to its internal legal services for a view about the school’s compliance with the above quoted clauses. An internal email shows the solicitor’s analysis of the matter. They concluded Counsel had already advised that planning permission was not needed, and it was therefore not unreasonable to assume, for the purposes of the lease, that the fence was not a structure.
33. Another solicitor from the Council’s legal services agreed with the above conclusion. Following receipt of this legal opinion, the Council wrote to the school to confirm it was not in breach of the lease. Mrs Y disagrees with this decision.
34. It is not the Ombudsman’s role to interpret the law, and so it is not for us to determine whether the fence is a structure. Instead we investigate how the Council has considered the matter, and whether it has made a reasoned decision taking all relevant factors into account.
35. While I appreciate Mrs Y and others disagree with the view taken by the Council, I cannot say it amounts to procedural fault. Based on the files seen, it is clear the Council’s internal legal team researched and fully considered the matter before taking a view. As Landlord, it is for the Council to interpret and enforce the lease. Without procedural fault, I cannot interfere with or question the merits of the decision which Mrs Y disputes.

Complaint c)

36. Tree Preservation Orders (TPOs) make it an offence to cut down, uproot or wilfully damage a protected tree without the Council’s consent. Section 210(2) of the Town and Country Planning Act 1990 provides that anyone found guilty of these offences is liable, if convicted in the magistrates’ court, to a fine of up to £20,000.
37. The boundary of the land is lined by mature trees, some of which are subject to TPO’s due to their ‘notable’ or ‘veteran’ status. Mrs Y says the leaseholder has damaged the roots of some of these trees through drilling and digging when installing the fence. She says the Council has ignored the TPOs, and instead helped the leaseholder to avoid making an application for consent to undertake work to any of the protected trees.
38. Government guidance makes clear that, when faced with what it believes are unauthorised works to protected trees, a council may:

• do nothing – but only if justified by the particular circumstances;
• negotiate with the owner to remedy the works to the satisfaction of the authority;
• consider the option of issuing an informal warning to impress on the tree owner or others suspected of unauthorised works that such work may lead to prosecution;
• seek an injunction to stop ongoing works and prevent anticipated breaches; or
• consider whether the tests for commencing a prosecution are met.

39. Due to the closeness of the protected trees to the proposed works, a Planning Enforcement Officer and a Tree Officer visited the site on 15 January 2019. Shortly after this visit, the Council wrote to the school recommending that it employ an independent tree consultant to oversee any excavations near to tree roots. The Council suggested several independent consultants.
40. The Council met with the school on site some days later. It reviewed the fencing installed to date to ensure advice previously given by its Tree Officer had been followed. Following the meeting, the Council wrote to the school explaining that its tree consultant needed to have a greater presence on site. The Council confirmed it was satisfied the works completed so far had not damaged any of the protected trees, but said it needed to receive updated plans and drawings from the leaseholder regarding all trees on site.
41. The Council reminded the leaseholder that it needed to ensure any ongoing works would not impact on protected trees. The Council explained that, if it had any doubt about this, it would formally seek an application under Regulation 13 of the Town and Country Planning Act. It reminded the leaseholder that any unauthorised works to protected trees could lead to prosecution.
42. After meeting with the Council again in late January, the school submitted its ‘Aboricultural Method Statement’. The purpose of which was to provide details of how any planned operations near trees would be carried out. 
43. The Council wrote on 7 February, “we can confirm our agreement to this Statement and would set out that we expect the school to observe the methods of working and supervision and monitoring processes that are set out”.
44. Despite the school’s assurances, Mrs Y and others continued to raise concerns about possible damage to protected trees; namely works completed within Root Protection Areas (RPA) and the cutting of mature roots.
45. The Council accepts that, while erecting the fence, works were carried out to some tree roots; however, it says these works were carried out in line with the statement and under the supervision and support of the Council’s Tree Officers and the school’s consultant.
46. Mrs Y is correct to point out the Council was entitled to take formal action against the leaseholder for undertaking work to the roots of protected trees. However, as the guidance sets out, the Council also had discretion to do nothing, or negotiate with the school to remedy matters to the satisfaction of the Council.
47. Based on the evidence seen, it is clear the Council made site visits, arranged meetings and reviewed any damage to trees before deciding not to take action against the school. In line with the guidance, the Council was entitled to make this decision. Although the law allows it to enforce against the leaseholder, the Council made a reasoned decision not to. I have no basis to challenge the merits of that discretionary decision.

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Final decision

48. I have completed my investigation and found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman