Summary: Mr B complained the Council made errors when it approved his neighbour’s planning application for a boundary fence, and it failed to take action against encroachment on his property. We found the Council at fault for failing to follow the local Highway Authority’s advice, as it approved the planning application without conditioning a pedestrian visibility splay. It was not at fault for not taking enforcement action for encroachment. The Council agreed to apologise to Mr B and make payment to acknowledge the distress its fault caused him.

The complaint

1. The complainant, whom I shall refer to as Mr B, said the Council wrongly approved his neighbour’s planning application for the removal of a wall and erection of a new fence. He said it:
• failed to apply the pedestrian visibility splay advice and requirement provided by the County Council Highways Officer, and failed to correct its error when it was brought to its attention; and
• wrongly refused to take any action against his neighbour for doing works on his land without permission.
2. As a result, Mr B says he experienced distress and he is at risk of causing harm to pedestrians each time he leaves his home.

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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 an organisation’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 my investigation, I have:
• considered Mr B’s complaint to the Council and its responses;
• discussed the complaint with Mr B and considered the information he provided;
• considered the law, guidance, and planning documents relevant to the complaint.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. Any person may apply for planning permission for land owned by any other. The Council as local planning authority must consider any valid application for planning permission and cannot refuse an application simply because the applicant does not own all the land to which the application relates.
8. When applying for planning permission an application is required to make a declaration confirming they either own all the land or that they have informed the relevant landowners of the application; this is to ensure those with an interest in the land have an opportunity to comment on the proposal.
9. The application process looks at the principle of the development and whether it is acceptable in planning terms. It does not provide a mechanism to determine boundary disputes and a grant of planning permission does not give someone any right to build on land they do not own.
10. ‘The Kent Design Guide, Review Interim Guidance Note 2 (2008) says pedestrian walking should not be hidden from the view of drivers emerging onto the street from driveways. Visibility splays of 2 x 2 metres are recommended.
11. The Department for Transport’s ‘Manual for Streets 2’ (2010) sets out guidance for street layout. It does not set standards and said this is for local highway authorities to decide. However, it recommends:
• a change from the focus on vehicular priority to pedestrian priority; and
• an initial assessment of need, careful design of necessary pedestrian visibility, and proper regard for the actual driver to pedestrian (and vice versa) line of sight scenarios.

What happened

12. Mr B’s home fronts a pavement and a local access road. He has parking space for two vehicles in his driveway. To the side of his driveway, there was an open grassed area which belongs to his neighbour, Mr X.
13. Mr B’s neighbour, Mr X, removed a 2-metre-high garden wall. He replaced it with a 2-metre-high fence, which was placed at the border of Mr B’s driveway and along the pavement. He also made changes to a boundary wall between his and Mr B’s property.
14. In 2021, Mr X made a planning application to the Council for permission for the works which had taken place. This set out drawings of the fence and the boundary wall. It also included a 1.5x1.5 metre visibility splay at the corner between the pavement and Mr B’s driveway.
15. The Council consulted the County Council’s Highways Officer and told Mr B about the application. They both raised concerns about the suitability of the visibility splay in Mr X’s plan. Mr B also told the Council Mr X had encroached on his property following his works to the boundary wall.
16. Mr X provided new plan (Plan A), which set back the fence slightly from the pavement to provide a vehicular visibility splay. It also set out a 2x2.4-metre pedestrian visibility splay.
17. The Highways Officer considered Plan A and found this acceptable, subject to a condition that the fence line should be amended to be in the positions shown in the new plan and there should be no obstruction over 0.6 metres above the road level.
18. Three days later the Highways Officer reviewed Mr X’s Plan A again. He told the Council there was an error in the drawings as the pedestrian visibility splay shown was incorrect. He shared an example of the correct required visibility splay. The Council said it would follow the Highways Officer’s advice.
19. The Council approved Mr X’s planning application subject to the condition the fence should be repositioned as set out in Mr X’s Plan A.
20. Mr B told the Council it had wrongly approved Mr X’s planning application as the visibility splay shown on Plan A and the works that had taken place did not follow the Council’s visibility splay guidance and the Highway Officer’s advice.
21. The Council told Mr B it did not find it had wrongly approved Mr X’s planning application. It also said his concerns about Mr X’s encroachment on his property was a private matter and it had no power to take enforcement action.
22. The Council later consulted with the Highways Officer again to confirm whether he would have recommended refusal of the approved Plan A.
23. The Highways Officer said he would not have objected or recommended refusal of the 2x2 metre pedestrian visibility splay. However, he would have expected a condition for the pedestrian visibility splay as set out in the ‘Kent Design Guide (2008)’ and the ‘Manual for Streets (2010)’.
24. Mr B remains unhappy with the Council’s handling of his concerns and its approval of Mr X’s planning application, and its refusal to take action against Mr X’s encroachment.

Analysis

Visibility splays

25. When considering planning applications, it is for the planning authority and the local highways authority to determine whether the drawing in a planning application meet the local policy standards.
26. In this case, the County Highways officer found Mr X’s initial drawings did not meet the guidance for vehicular visibility and the proposed 1.5x1.5 metre pedestrian visibility splay was insufficient.
27. Following Mr X’s submission of the revised Plan A, the Highway’s Officer was satisfied with the vehicular visibility splay. However, he told the Council there were errors in the drawing for the pedestrian splay and provided an example of a 2x2 metre splay required, which the Council agreed to include as a condition.
28. However, the Council approved Mr X’s application and made its condition subject to Mr X’s Plan A which contained errors. It appears to me the pedestrian visibility splay is placed incorrectly on Mr B’s driveway, or this splay is the dimensions for the vehicular splay. Therefore, the Council failed to place a requirement on Mr X to reposition his fence to include the pedestrian visibility splay of 2x2 metres.
29. I acknowledge the Highway Officer has since said he would not have objected or recommended refusal. However, he would have expected a pedestrian visibility splay as set out in the Kent Design Guide. The Council approved Mr X’s planning application, and no good reasons for departing from the Council’s Policy on visibility splays have been shown.
30. I found the Council made an error. Its discussion with the Highway Officer shows it intended to follow his advice and its own Policy. It was therefore at fault for approving Mr X’s application without conditioning the correct placement of the 2x2 metre pedestrian visibility splay.
31. It is not possible to retrospective change a planning approval. The Council cannot therefore now require Mr X to make changes to his fence. Mr B is therefore left without any solution to his concerns.
32. I have seen no evidence Mr B has caused injury to any pedestrians when leaving his property. However, I am satisfied Mr B experienced some distress due to the Council’s handling of the matter and his ongoing concerns about pedestrian safety. He has also had some time and trouble to get the Council to accept its error.

Encroachment

33. When applying for planning permission an application is required to make a declaration confirming they either own all the land or that they have informed the relevant landowners of the application; this is to ensure those with an interest in the land have an opportunity to comment on the proposal.
34. The Council correctly told Mr B it has no authority to take action against his neighbour for encroachment. The planning application process looks at the principle of the development and whether it is acceptable in planning terms. It does not provide a mechanism to determine boundary disputes and a grant of planning permission does not give someone any right to build on land they do not own. Such issues are private matters, and Mr B should seek a determination under a private Party Wall Act award or civil action against his neighbour for the boundary issue. The Council was therefore not at fault.

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Agreed action

35. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
1. Apologise to Mr B for its error;
2. Pay Mr B £500 to acknowledge the distress he experienced as a result of the Council’s error in approving an inadequate pedestrian visibility splay as set out in its Policy and advised by the Local Highway Authority, including the time and trouble he had to get the Council to acknowledge its error.
36. Within three months of the final decision the Council should also:
1. remind its planning officers, when considering planning applications for vehicular and pedestrian visibility splays, to follow the advice it has agreed with the Local Highways Authority and the guidance set out in its own Policy, unless it can show good reasons for not doing so.

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Final decision

37. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman