The Ombudsman's final decision:
Summary: Mrs X complains the Council inappropriately erected a fence between their rear alleyway and a road in an adjoining housing estate. There was fault by the Council. It failed to apply for planning permission for the fence or properly consider the impact the fence would have on rights of access. The Council agreed to remove the fence to restore the position before the fault occurred.
- Mrs X complains on behalf of several of her neighbours. She complains the Council acted inappropriately when it erected a fence. The fence blocked a junction between an alley to the rear of their properties and a road in an adjoining housing estate. She complains the fence blocked a right of way and the situation has caused difficulties between neighbours.
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)
- 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 considered Ms X’s complaint and contacted her to establish her position. I considered the Council’s response to the complaint and made enquiries of the council to seek some more information. I issued a draft decision to enable both parties to comment. I considered the comments I received before reaching a final decision.
What I found
- In August 2016 Mrs X and other residents received a leaflet from a local councillor. He stated the council proposed “an application to erect a fence”. This was to block off a neighbouring cul‑de-sac from an alleyway that ran along the rear their properties. The note stated the reason for the proposed fence was to improve security because of an increase in anti-social behaviour.
- In her response Mrs X stated she had no objection to the idea of the fence. She stated there had been fencing many years ago, but this had gradually come down, most likely removed by people taking a short cut.
- Mrs X told me while she supported the proposal, she understood that some residents objected to the loss of access. She understood others had no objection to the fence in principle. Mrs X also said that she expected to be consulted further before the fence was erected.
- The Council provided copies of the responses it received from both sets of residents to the original consultation. The responses indicate all those who responded were in support of a fence.
- Mrs X and her neighbours say they received no further information about the matter. But, around four months later a six-foot high fence was erected, blocking off the neighbouring cul‑de-sac.
- After the fence was erected, residents in Mrs X’s road complained that they had not been properly consulted, their right of way had been stopped and the Council had erected the fence without planning permission. This prompted the Council to apply for retrospective planning permission to retain the fence.
- In response to the planning application, Mrs X says neighbours told the Council the fence was on land owned by them, rather than the Council. Residents also objected to the loss of their right of way. Some other residents felt the fence had been positive and helped with security.
- The planning committee considered the application on 22 February 2017 but refused the application against officer recommendations for approval. It was refused because of the impact on resident’s amenity.
- After the application was refused the Council consulted residents about the possibility of installing a gate in the fence to enable some access.
- Mrs X formally complained about the matter in June 2017.
- The Council organised a residents meeting in early July 2017. The meeting was unsuccessful and Mrs X says residents were unhappy with how it was conducted. She also complained that some residents were rude which caused upset.
- In July 2017, the Council responded to Mrs X’s complaint. The Council acknowledged Mrs X’s concern and frustration. It stated finding agreement to the issues had been difficult. The Council acknowledged it was very likely that rights of way did exist that had been stopped by the fence. The Council also accepted it was ‘less than ideal’ that the Council erected the fence without permission. It apologised for the inconvenience this caused but stated the fence had been erected with the best of intentions, albeit without proper awareness of the issues. The Council stated at the meeting there had been some consensus that a gate would be an appropriate way forward. In response, Mrs X stated this had not been the case. She stated residents from the neighbouring cul-de-sac wanted to keep the fence without a gate.
- At the meeting Mrs X says she and other neighbours felt the fence should be removed. But, she explained since then that concerns about neighbour relations had led to residents in Mrs X’s street changing their view. She explained some now considered the fence should remain, but with the gated access.
- It seems clear no agreement could be reached about what should be done. There were disagreements about whether to have a gate, which way the gate could open and who could have access to keys.
- In February 2018, the Council told Mrs X that its highways team objected to a swinging gate as it could be a possible obstruction under the Highway Act. The Council also received objections from both residents groups when it consulted on the gate opening in either direction.
- Mrs X says there was some confusion over the proposed gate. She recalled when she had met with a council officer to discuss the matter the Council was still considering a swinging gate, but was later advised a sliding gate was being considered.
- In any event, the Council’s position is that having attempted to reach a compromise and find a solution it could not proceed any further. This was because there no agreement could be reached between both sets of residents about the gate, who should have access and who would have keys to any gate that was installed.
- Unhappy with the Council’s actions, Mrs X brought a complaint to the Ombudsman.
What should have happened
- The Council’s original contact with neighbours was positive. It was responding to concerns raised with a councillor and the Council explained the fencing proposed and sought resident’s views. However, the Council told residents it intended to make an ‘application’. So, some residents understandably expected a formal application process to follow. In any case, the Council needed planning permission to erect the fence, which it should have applied for.
- The failure to apply for planning permission for the fence before erecting it was fault by the Council. If the Council had applied for planning permission it would have been publicised and it would have given residents, and anyone else with an interest, a chance to make comments before the application was decided.
- In addition to the issues around planning permission, the Council also failed to consider the impact the fence would have on rights of access for all residents in the area. The impact on access rights could have been considered as part of the planning process. It may also have been appropriate for the Council to consider whether there was a need to follow a formal process for stopping highway access. The failure to consider access rights was also fault.
- When the Council received complaints, it sought retrospective planning consent. This was appropriate. I recognise that since this was refused, officers have been attempting to find a solution. However, despite efforts by the Council, it has not been possible to agree a way forward. I note the Council has apologised for the issues that have been caused by its actions.
- As it is accepted that the fence is unauthorised development and it blocks a right of way, I recommended that the Council removed the fence and restored the land to the position it was in previously, with the original concrete bollards being retained.
- In making this recommendation I understand that not all residents will be in agreement with this action. However, removing the fence remedies the breach of planning control and restores the land to the situation prior to the fault occurring.
- It is obviously open to the Council to review any continuing of further reports of anti-social behaviour at the site and in the area and to consider whether that justifies any action by the Council. If the Council considers it should install fencing in future or take any other action in response to what it finds, it should make the appropriate applications through the planning system and through highways legislation. The Council should ensure all the relevant residents are properly consulted and that comments made by all residents are considered prior to action being taken.
- I understand that this issue has exacerbated difficulties in relationships between some residents in the area. The Council should write to all residents in the area prior to removing the fence. It should explain the faults with the way the Council went about erecting the fence and explain that remedying these faults is the reason that the fence will be removed rather than to accommodate any particular group of residents’ wishes. It may also be appropriate for the Council to offer mediation between residents, should they wish to take this up.
- Within four weeks of my final decision the Council should write to all residents in the immediate area advising them it will be removing the fence. It should explain this is because the fence is unauthorised and it is being removed to address faults in the way the Council went about erecting the fence rather than to accommodate any particular group of residents’ wishes. In its letter, the Council should briefly explain the faults in the way the Council went about erecting the fence.
- Within eight weeks I recommend the Council removes the fence and restores the land to the position it was in prior to the erection of the unauthorised fence.
- There was fault by the Council. I have now completed my investigation and closed my file on the basis the Council takes the agreed action.
Investigator's decision on behalf of the Ombudsman