The Ombudsman's final decision:
Summary: Mr C and Mrs D complain about the Council’s response to their reports about a neighbouring farmer removing a nearby hedgerow, drainage works and creating a slurry lagoon. Mr C and Mrs D say they suffered flooding to their land, the area has lost an important stretch of hedgerow and they have spent unnecessary time and trouble in pursuing the matter. We have found delay and poor communication by the Council but consider the agreed action of an apology, payment and other action to provide a suitable remedy.
- The complainants, whom I shall refer to as Mr C and Mrs D, complain the Council failed to provide a timely response or take appropriate action in response to their reports about a neighbouring farmer removing a nearby hedgerow, filling in a drainage ditch and replacing it with an inadequate underground drainage pipe and creating a slurry lagoon in nearby woodland.
- Mr C and Mrs D say because of the Council’s fault, they suffered flooding to their paddock and garden which meant their septic tank required regular pumping. Mr C and Mrs D say the area has also lost an important stretch of hedgerow and they have spent unnecessary time and trouble in pursuing the matter.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mr C and Mrs D and discussed the complaint with them. I have considered some information from the Council and provided a copy of this to Mr C and Mrs D. I explained my draft decision to Mr C, Mrs D and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation
- Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
- Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:
- the carrying out of development without the required planning permission; or
- failing to comply with any condition or limitation subject to which planning permission has been granted.
- Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
- Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
- A countryside hedgerow is a boundary line of bushes which can include trees. A hedgerow is protected, meaning you cannot remove it, if it meets the following criteria for length, location and importance.
- In terms of ‘length’, a hedgerow is protected if it’s:
- more than 20m long with gaps of 20m or less in its length
- less than 20m long, but meets another hedge at each end
- In terms of ‘location’, a hedgerow is protected if it is on or next to:
- land used for agriculture or forestry
- land used for breeding or keeping horses, ponies or donkeys
- common land
- a village green
- a site of special scientific interest
- a protected European site such as a special area of conservation or special protection area
- a local or national nature reserve
- land belonging to the state
- A hedgerow is not protected if it is in, or marks the boundary of, a private garden.
- In terms of ‘importance’ a hedgerow is important, and is protected, if it is at least 30 years old and meets at least one of these criteria:
- marks all or part of a parish boundary that existed before 1850
- contains an archaeological feature such as a scheduled monument
- is completely or partly in or next to an archaeological site listed on a Historic Environment Record (HER), (formerly a Sites and Monuments Record)
- marks the boundary of an estate or manor or looks to be related to any building or other feature that’s part of the estate or manor that existed before 1600
- is part of a field system or looks to be related to any building or other feature associated with the field system that existed before 1845 - you can check the County Records Office for this information
- contains protected species listed in the Wildlife and Countryside Act 1981
- contains species that are endangered, vulnerable and rare and identified in the British Red Data books
- includes woody species and associated features as specified in Schedule 1, Part II Criteria, paragraph 7(1) of the Hedgerow Regulations - the number of woody species needed to meet the criteria is one less in northern counties
- A person can only remove the hedgerow if:
- It is less than 30 years old
- They are the owner, tenant or manager of the hedgerow
- They are a utility company that is eligible to remove it
- A person will need to provide plans relating to the hedgerow to the local planning authority (LPA). The LPA has 42 days to respond to a written notice to remove a hedgerow. The LPA will issue either:
- a hedgerow retention notice - if the hedge is protected and must be kept
- a written notice giving permission to remove it in the way proposed
- Mr C telephoned the Council on 8 November 2019 about the removal of a 400 metre hedgerow near his property. Mr C also stated the owner of the land had completed drainage works which were causing issues of flooding.
- Mr C emailed the County Council on 11 November about the same issues and raised an additional issue about the storage of silage/slurry in nearby woods which had been unfenced. The County Council forwarded the email to the Borough Council on 13 November. The Borough Council referred the issues relating to flooding and waste management back to the County Council as these fell within its area of responsibility. The Borough Council said it would investigate the removal of the hedgerow.
- The Council emailed Mr C on 13 November to say it had been forwarded his email but his photographs were not attached and asking him to resend these directly. Mr C emailed two photographs to the Council on 14 November showing flooded land.
The Council emailed Mr C on 15 November to confirm his report about the removal of the hedgerow had been referred to the Council’s Tree Officer who would visit the site. The Council confirmed it had approved a planning application for a slurry lagoon in 2017 and provided details of the permission. The Council asked Mr C to let it know if the location was not as set out on the approved plan. The Council also confirmed the storage of silage on agricultural land did not normally require planning permission unless a new building was created for storage. The Council explained that field drains on agricultural land were not controlled by the Council’s Planning department and Mr C’s concerns about public rights of way and flooding had been sent to the County Council as the appropriate body. Mr C emailed the Council on 17 November to say the planning application details provided by the Council did not relate to the site he was concerned about. Mr C emailed the Council on 18 November to say the location of the slurry lagoon was based on local rumour. The Council replied the same day to say it did not have the resources to investigate such reports.
- Mr C emailed the Tree Officer on 21 November to request an appointment or site visit to discuss the hedge. Mr C chased a reply on 28 November
- Mr C wrote to the Council’s Head of Planning on 3 December seeking a reply to specific questions. Mr C enclosed a map of the relevant area and photographs.
- Mr C wrote to the Council on 19 December seeking an update. The Council sought a map of the location of the hedgerow removal on 20 December. Mr C provided a further map to the Council on 23 December and sought an update about this on 8 January 2020.
- The Council emailed Mr C on 16 January to say it would look into the hedgerow removal during the week commending 20 January. Mr C emailed the Council on 23 January seeking an update and suggesting a site visit would be easiest from their land and could be combined with a visit to the location of the slurry lagoon nearby.
- The Council emailed Mr C on 3 February to confirm it had completed a site visit and would inform him of any significant developments. This correspondence crossed with a letter dated 3 February from Mr C chasing a reply which was received by the Council on 4 February.
- Mr C wrote to the Council on 5 February as he was unhappy about the delay and response received. Mr C wrote to the Council on 14 and 22 February seeking an update and reiterating his concerns about flooding after the drainage works. The Council visited the site again on 25 February.
- Mr C wrote to the Council on 6 March chasing a reply. The Council replied on 10 March to say it would not be taking any further action about the slurry lagoon without additional information. The Council confirmed it was investigating the hedgerow removal but would not provide any further updates during the course of its enforcement investigation.
- Mr C emailed the Council’s Chief Executive on 11 and 27 March seeking an update. The Council provided a response at the second stage of its complaint procedure to Mr C on 28 March. This set out the Hedgerow Regulations and powers available to the Council and that the matter was ongoing and it would inform Mr C of the outcome. This letter also provides details about the Countryside Stewardship Scheme and possible redress via the Rural Payments Agency. The Council explained the slurry lagoon may constitute permitted development depending on its location and that it would need a more precise location to reach a view on this. The Council also advised Mr C that his issues about flooding were a civil matter.
- Mr C wrote to the Council on 31 March providing information about the hedgerow and reiterating his concerns about the drainage ditch being filled in and referring to previous maps he has provided for the slurry lagoon location which he says was in a small wood a short distance from the road.
- Mr C emailed the Council on 1 July seeking an update. Mr C wrote to the Council on 13 August and emailed the Council on 25 August to say he understood the ditch was to be reinstated and asking if there was an outcome to the Council’s enforcement investigation. Mr C emailed the Council on 2 September chasing a reply and enclosing information from the Rural Payments Agency which noted there was an exemption for removing hedgerows for land drainage purposes.
- Mr C wrote to the Council on 21 September chasing a reply and saying the new ditch was not in the same location as the original ditch.
- The Council responded to Mr C on 8 October at the final stage of its complaints procedure. The Council provided the reasons for its decision not to pursue a prosecution for the unlawful removal of the hedge. This was because of the length of time between the removal of the hedge and when it was formally notified and the possibility the works were done under a statutory exemption to related regulations. The Council also stated that in relation to serving a notice to reinstate the hedgerow it did not consider a replacement hedge would survive due to the groundworks and flooding at the site but it would monitor ground conditions to see if they improved. The Council confirmed the creation of a new ditch was permitted under the Town and Country Planning Act 1995, Part 6. The Council advised Mr C of his right to complain to the Ombudsman.
- Mr C contacted the Council on 12 October as he was not happy with the delay or outcome and challenging the exemption relating to the hedge and that a replacement would not survive given the planted crops on the same site. Mr C was also unhappy there was no reference to the slurry lagoon. Mr C provided photographs of the land on 25 October to say it was possible to replant.
- The Council’s enforcement policy says it will acknowledge receipt of a reported breach of planning control within three working days and will update the complainant as its investigation is progressing. The Council’s policy also sets out how it assesses priority and the expected timescale for a site visit. It is not clear which of the four priority bands the removal of a hedgerow would fall within but the expected timescale for the four bands is between one working day for priority 1 cases and within twenty days for priority 4 cases.
- Although the Council contacted Mr C in response to his original report in November 2019 in line with the timescales set out in its policy it did not visit the site until February 2020. This delay is excessive and constitutes fault. I have to consider what injustice, if any, this delay has caused Mr C. I understand from Mr C and Mrs D that the hedgerow was removed sometime during the spring of 2019 but was not reported to the Council until November. It is difficult to asses the impact of the Council’s delay between Mr C’s November 2019 report and its visit in February 2020 given the initial delay in the report.
- However, I am concerned the Council has not provided any evidence of contact with the landowner about the removal of the hedgerow or the location of the slurry lagoon. The Council has confirmed it gave planning permission for a slurry lagoon in 2017 and so it would have been able to check the location against the approved plan (although I note Mr C advised the Council the planning application details it had provided did not relate to the site he was concerned about) during a site visit with the landowner to discuss this and the hedgerow removal. This would also have allowed for the possibility of informal action regarding the reinstatement of the hedgerow even if the Council did not consider the serving of a formal notice was appropriate. On balance, I consider this constitutes fault which has resulted in a missed opportunity.
- The Council advised Mr C in March that although the hedgerow removal issue was ongoing it would not provide any further updates. This is fault. Whilst we would not expect a running commentary to be provided for ongoing enforcement matters, the Council’s own policy says it will provide updates. I also note the repeated failure to reply to Mr C’s correspondence during this period. Based on the information provided, I consider Mr C was put to more time and trouble than should reasonably be expected.
- Mrs D has confirmed that the new ditch had resolved the issue of flooding and so I do not consider further investigation on this issue is warranted.
- The Council has agreed to complete the following action to provide a suitable remedy for Mr C and Mrs D:
- write to Mr C and Mrs D to apologise for the delay and poor communication when dealing with their reports within one month of my decision;
- pay Mr C and Mrs D £100 for their time and trouble in pursuing the matter within one month of my decision;
- complete a site visit to assess ground conditions and, if appropriate, review whether it should issue a notice for the replacement of the hedgerow or otherwise use its best efforts to agree the reinstatement of the hedgerow with the landowner within three months of my decision;
- take such action as necessary to establish if the location of the slurry lagoon Mr C reported is in accordance with any relevant approved plans and, if not, whether it benefits from permitted development rights within three months of my decision; and
- review its enforcement policy and provide guidance to relevant staff to ensure complainants are provided with regular updates during the course of investigations within three months of my decision.
- I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.
Investigator's decision on behalf of the Ombudsman