Summary: Mr B complains the Council has not taken enforcement action against the removal of a hedgerow. He says this breaches legislation, national guidance and the Council’s local policies aimed at protecting biodiversity. The Ombudsman does not find fault in how the Council considered the planning application or whether to take enforcement action.

The complaint

1. The complainant, who I refer to as Mr B, complains about the removal of a hedgerow next to a public path. Mr B says a hedgerow was removed from beside a footpath near his home. He says the Council should take enforcement action in line with legislation protecting hedgerows, national guidance, and the Council’s biodiversity plan. He says it has refused to take any action. Mr B is concerned about the impact on biodiversity in the local area.
2. Mr B also complains the Council allowed an increase in parking at the property, which will add to traffic and pollution in the local area.

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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. 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)
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 reviewed the information provided by Mr B and sent a copy of my draft decision to him and the Council inviting them to provide comments.

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What I found

Legislation, Guidance and Local Policies

7. Permission is required for any development. A development includes:
• Building operations
• Material changes of use
• Engineering operations
• Mining operations
• Operations normally undertaken by a builder
• Subdivision of a building
8. The Hedgerow Regulations 1997 (“the Regulations”) prohibit the removal of most countryside hedgerows. The Regulations apply to any hedgerow growing in, or adjacent to, any common land, protected land, or land used for agriculture, forestry or the breeding or keeping of horses, ponies or donkeys, if certain criteria apply.
9. Common land is defined in the Commons Registration Act as land subject to rights of common or waste land but does not include a highway. Rights of common include rights of vesture, herbage or pasture.
10. The Department for Environment, Food and Rural Affairs (“DEFRA”) published guidance on the Regulations (“the Guidance”). It says the Regulations are primarily aimed at countryside hedgerows. It says the Regulations encompass relatively few hedgerows in urban areas, but this does not imply such hedgerows are not important or worthy of protection. It says existing planning legislation provides a measure of protection by allowing councils to impose conditions when granting planning permission, such as requiring the retention of hedgerows on site.
11. The National Planning Policy Framework (“NPPF”) says planning policies should conserve and enhance the natural and local environment.
12. The Council’s development plan says it will permit development where it, among other things, enhances the landscape and promotes biodiversity.
13. The Council has a supplementary planning policy (“SPD”) for design, which promotes the use of natural screens and hedges as boundary treatments. It says that good design starts with an understanding of the local context. It says developers should consider relevant issues such as the landscape, including trees and hedgerows.
14. The Council also has a biodiversity action plan, which is split into different sections depending on the location. The urban section talks about the impact of removing or changing potential habitats, which it says includes verges next to footpaths. It does not mention hedgerows specifically. The plan includes the following objectives:
• Protect and enhance significant areas of urban biodiversity as part of Green Infrastructure
• Make provision for biodiversity within all urban greenspace
• Make provision for biodiversity within new development
• Create corridor opportunities
• Increase area of private greenspace, allotments and gardens managed for wildlife
15. The Council’s parking standards SPD says houses with four or more bedrooms should have at least three parking spaces.

Background

16. In November 2016, the Council approved a planning application for demolishing a garage and an extension to a house close to a town centre. The house borders an adopted local footpath. It had an existing border fence. Between the fence and the alleyway was a hedgerow and several trees. Mr B says the hedgerow is protected under the Regulations.
17. The Council noted the presence of trees between the property and the alleyway. In its report the Council said the trees were not subject to formal protection. The Council did not consider the trees were of sufficient prominence to justify the making of a tree preservation order. It did not consider the development would have an adverse on the character and appearance of the area.
18. The report says the property benefits from an existing hard surfaced driveway that can provide up to four parking spaces. However, as there was some loss of parking it included a condition to retain the driveway.
19. The conditions also included an informative that the planning permission did not give any authorisation to enter onto land or carry out works not within the applicant's ownership.
20. In March 2018, the Council approved an amended application for an increase in depth in the rear extension and changes to the extension design. The Council’s report again commented on the trees, with the same findings.
21. The Council noted the new plans showed five cars parked on the driveway but said two of the spaces overlapped. There was no change to the size of the driveway.
22. Mr B lives nearby and often uses the footpath. In August 2019, Mr B found the owner had removed the hedgerow bordering the footpath. He was concerned about the loss to the natural environment and its impact on biodiversity in the area, so wrote to the Council. He complained the Council had not enforced the Regulations, regarding removal of hedgerows.
23. The Council said the section of land Mr B referred to did not come under the definition of a hedgerow and was not protected by the Regulations.
24. Mr B was not satisfied with the response and made a stage two complaint. The Council responded that as there are no restrictive planning conditions, removing the hedgerow did not need planning permission. The Council could therefore not take enforcement action.
25. Mr B made a stage three complaint, in which he also raised concerns about an increase in parking from four to five spaces. The Council’s response reaffirms what it said in the previous responses. It says parking provision at the property had not increased so there was no impact on local amenity.

Findings

The Regulations

26. I do not find fault in the Council’s decision not to take enforcement action.
27. I have read through Mr B’s complaints and the Council’s responses. I believe the Council could have been clearer about why the Regulations did not apply. For instance, the first response does not explain why the hedge did not meet the definition of a hedgerow, or to what definition it was referring. In the second response the Council explained it could not take action when there were no restrictive planning conditions. However, it did not explain why it could not act purely based on the Regulations.
28. The Council should ensure it provides clear, detailed responses, which address each issue the complainant raises. This is a point to note going forward but is not so significant in this case that I would find fault. What the Council said was correct, only lacked detail.
29. The Regulations do not apply in this instance as the hedge is not in a location that meets the necessary criteria. It is not next to common land, protected land, or land used for agriculture, forestry or the breeding or keeping of animals. It is in an urban area, between a footpath, school and a residential estate. As the Guidance points out, the Regulations are aimed at countryside hedgerows and rarely apply to hedges in urban settings.
30. The Guidance says urban hedgerows are still important and there is some protection in planning policy. However, this means the issue is whether the Council properly considered whether to protect the hedgerow by way of condition, when approving the application. There is no separate enforcement power under the Regulations.

The Planning Application

31. The original planning application took place in late 2016. Mr B did not complain until August 2019, nearly three years later. Normally we will not investigate complaints in these circumstances as it is reasonable to expect the person affected to have raised any objections during the application process and, if dissatisfied, raise a complaint within 12 months of the decision.
32. I will not exercise discretion to investigate the first application. However, the Council considered an amended application in 2018. Mr B did not complain until 15 months after that application, so it could still be considered out of time. Yet, it is only out by three months at most and August 2019 is when Mr B first became aware the hedgerow had been removed. Therefore, on balance, I have decided to exercise discretion to look at the amended application. This covers the same points as the original decision.
33. I do not find fault in how the Council decided the application, or for not including a condition to protect the hedgerow.
34. The NPPF says councils should conserve and enhance the natural environment but is not specific about how it should do so in individual applications. The Council should have regard to the NPPF in any application, but its main focus is on councils producing consistent policies.
35. The Council’s policies show that it should consider the loss of trees or hedgerows within the context of the development. However, it is for planning officers to decide whether conditions are necessary to protect these in individual applications.
36. The delegated report shows the officer considered the trees bordering the footpath. It does not mention a hedgerow specifically, but the trees will have formed part of the hedgerow. The Council has set out why it did not consider removal would have an adverse impact on the character or appearance of the area. This is the Council’s decision to make. It is not my place to question Council’s decision when the Council made that decision in line with the relevant legislation, policies and guidance.
37. The report does not refer to the Council’s biodiversity action plan. However, the plan sets out ways the Council can actively promote biodiversity. It does not comment on hedgerows specifically or say where the Council should use conditions to protect these. I therefore do not find fault in this respect.
38. The biodiversity plan is not a statutory ground on which the Council could take enforcement action. The Council cannot take enforcement action unless there is a condition preventing removal, which there is not. The removal of the hedgerow is an action, separate to the development. It is not a development, in of itself, so does not need planning permission. Therefore, there are no grounds on which the Council could take planning enforcement action.
39. The informative condition mentioned at Paragraph 18 does not prevent the owner from carrying out work on other land. It only means this particular decision does not grant approval for work on any other land. If he wished to carry out work that constituted a development on other land, he would need to apply for separate planning permission. Again, the removal of the hedgerow is not a development.

Parking

40. I note the amended plan shows five cars on the driveway as a pose to four in the original plan. There seems to be a slight increase in the size of the driveway on the second plan. The officer has commented on this in the report and notes that two of the car parking spaces are overlapping. However, the development also means the loss of a garage with space for one car, so there is no actual increase in parking provision. Therefore, I do not find fault in how the Council considered the impact on local amenity.

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Final decision

41. The Council is not at fault in how it considered the planning application or whether to take enforcement action.

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Investigator's decision on behalf of the Ombudsman