Summary: The Council was not at fault for the way it considered taking enforcement action against Mr X’s neighbours for removing a hedgerow to erect a fence.

The complaint

1. The complainant, whom I refer to as Mr X, complains about how the Council dealt with his reports of a planning breach by his neighbours when they erected a fence and removed a hawthorn hedgerow.
2. Mr X said the removal of the hawthorn hedgerow resulted in a loss of amenity and screening of the development for the residences along the road he lives. In addition the new laurel hedgerow plants planted by his neighbour encroached onto a restricted byway.

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What I have investigated

3. I have investigated how the Council considered Mr X’s enforcement complaint. I am aware Mr X has also consulted with the County Council’s highways authority. I have not considered matters relating to this.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. As part of this investigation I considered the information provided by Mr X. I discussed the complaint over the telephone with Mr X. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

Law and Council procedure

8. Councils can take enforcement action if they find an individual has breached planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. National Planning Policy Framework July 2018, paragraph 58 says:
• “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”
9. The Council’s Planning Enforcement Policy (the policy) says where there is a planning breach and the breach is not causing immediate harm, in most instances, the Council will provide owners/developers with an opportunity to alleviate a breach of planning control over a set period of time. This will provide developers/owners an opportunity to attempt to resolve the matter by either applying for retrospective planning permission or reducing the harm caused by the breach.
10. The policy says where a breach of control has taken place the Council will then assess the harm caused by the breach of control. When assessing harm the Council will not have regard to the loss of an individual’s view or trespass onto someone else’s land or private property rights and covenants. However harm could concern highway safety issues.

What happened

11. Mr X lives along a country lane. On the other side of the country lane is a residential development. The Council approved planning permission for this development in 2005 however, one of the planning conditions was the hawthorn hedgerow running along the country lane would be retained and not uprooted or destroyed.
12. In September 2019 some of the neighbours from the residential development, on the other side of the country lane, applied for planning permission to erect a fence along the boundaries of their properties. Mr X objected to the proposal. Among his objections he mentioned the proposed fence was outside of the neighbours boundary. The County Council also objected to this planning application as from the plans the fence appeared to extend out beyond the applicant’s boundary onto a public right of way.
13. The Council contacted the neighbours and told them their application was invalid as it included a material change of use of land from highway to residential. The Council pointed out the land identified was outside their ownership after consulting the County Council highways authority. The Council also told the neighbours about the planning condition which stated the hedgerow running along their boundary is to be retained but if damaged or removed would need to be reinstated.
14. The neighbours subsequently withdrew the planning application in February 2020. The Council entered discussions with the neighbours about the fence. The Council agreed if the fence was no more than 2 metres in height and built on land within their ownership, it could be built as permitted development and not require planning permission. The Council also agreed the hedges along the property boundary should be maintained, preserved or replaced.
15. Mr X complained to the Council on 19 February 2020 about its decision to allow the erection of a fence under permitted development. Mr X also said by allowing the fence it will breach the planning condition protecting the hedgerow.
16. Mr X’s neighbours removed the hedgerow and installed a fence along their property boundary. Mr X complained to the Council his neighbours had breached planning conditions by removing the hawthorn hedgerow and installing a fence.
17. The Council responded to Mr X’s formal complaint on 10 March 2020. The Council said:
• The planning application in September 2019 was invalid as the Council found the proposal was not on the applicants land. The application was withdrawn.
• It gave advice to the applicants as they asked about putting the fence on their land. The Council said this would qualify as permitted development if the fence was no more than 2 meters in height but there were planning conditions associated with the hedge.
• It has not considered Mr X’s objections as erecting the fence was permitted development and the applicants did not need permission from the Council to build it.
18. The Council also carried out a site visit in March 2020 where an enforcement officer looked at the existing fence and found part of the hawthorn hedgerow removed. The Council wrote to Mr X’s neighbours and said they had breached a planning condition by removing the hedgerow and told them they need to replace this with a plant type approved by the Council.
19. In April 2020 the neighbours asked the Council if they could plant laurel bushes to replace the hawthorn hedgerow. While the Council were considering this proposal the neighbours installed the laurel plants.
20. The Council provided its enforcement report to Mr X following his complaint. The Council decided there had not been a change of use of land from highway to residential by the building of the fence. The Council consulted with the County Council highways authority in April 2020, prior to deciding its enforcement investigation. The County Council said the byway appears to be unaltered from what existed before. The Council also considered the replacement laurel bushes fulfilled the planning condition which the neighbours breached. In its reasoning the Council said the replacement laurel retains the privacy of occupiers of adjacent properties and softens the appearance of the new fence. The Council decided it would not take enforcement action against the neighbours.
21. After receiving confirmation of the enforcement investigation Mr X asked the Council to consider his complaint at stage two of its process. Mr X said:
• The Council failed to act to prevent his neighbours abusing permitted development when works began.
• The wording on the paperwork the Council sent out has led to the removal of the hedgerow. The Council said the, “verge should be maintained, preserved or replaced.” The Council also said the fence should run along the boundary which was the original hedgerow.
• The neighbours have not replaced the hedgerow like for like. The old hedgerow was hawthorn and the new one is laurel which is an inferior plant.
• The Council took too long to respond to the neighbours removing the hedgerow.
• The 5.5 metre width of the country lane has been reduced because of the fence and new hedgerow.
22. The Council responded to Mr X’s complaint in June 2020. The Council said:
• It did not grant planning permission for erection of the fence or removal of the hedgerow.
• The removal of the hedgerow was a breach of planning control. However this was not a protected hedge under legislation. The Council also said the planning condition which the neighbours breached by removing the hedgerow does not specify what will happen if the hedgerow is removed.
• It has resolved the planning breach as the owners installed a new hedgerow.
• The footpath width is for the County Council to consider and not a planning issue. It has no powers over boundary issues if Mr X believes his access is affected by the fence.
• The replacement hedge is acceptable and appropriate considering what else could be achieved. The Council said if it took enforcement action the likely outcome would be to get the neighbour to install a new hedgerow, which has happened.
• It does not believe the fence has been erected outside of the boundary of the neighbours property.
23. Mr X remained dissatisfied and complained to the Ombudsman. Mr X also consulted the County Council rights of way officer over his concerns that the laurel hedgerow and fence obstructed the restricted byway.
24. After further investigation the County Council investigated the placement of the laurel hedgerow and the fence. The County Council contacted Mr X’s neighbours advising them the hedgerow and fence are obstructing the restricted byway and need to be moved so the full 5.5 metre width is available. Mr X reports at the time of this decision the neighbours have removed the fence and hedgerow.

Analysis

25. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made.
26. Mr X disagrees with the Council’s decision not to take enforcement action against his neighbours for removing a hedgerow to install a fence. While removing the hedgerow was a breach of a planning condition, National Planning Policy Framework and the Council’s enforcement policy do not place a duty on the Council to start formal enforcement action in all cases where it finds a planning breach.
27. After receiving Mr X’s complaint, the Council visited the site and noted the neighbour had removed the hedgerow. The Council wrote to the neighbour informing them they had breached a planning condition by removing the hedgerow and requested the neighbour replaced the hedgerow. This was an appropriate response.
28. The Council also opened an enforcement case but decided it was not appropriate to take enforcement action. The enforcement officer’s report shows the Council considered the replacement laurel was acceptable to remedy the breach of planning. The Council also explained the likely enforcement action it would take in this situation would be to require the neighbour to replace the hedgerow. As the neighbour had already done this the Council considered it was not necessary to take formal enforcement action. Although Mr X disagrees with the Council’s reasoning this was a decision the Council was entitled to make.
29. In relation to Mr X’s concerns about the new hedgerow encroaching onto the public right of way, the Council said it would be for the County Council Highways Department to consider. The Council consulted with the County Council as part of its enforcement investigation. The County Council rights of way officer raised no concerns about encroachment onto the restricted byway at this time with the Council. It was reasonable for the Council to rely on this when considering its enforcement investigation. It was only after the Council issued its enforcement investigation the County Council looked at the restricted byway and decided the fence and hedgerow encroached onto it.

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Final decision

30. I have completed my investigation and found the Council was not a fault in how it considered Mr X’s enforcement complaint.

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Investigator's decision on behalf of the Ombudsman