City of Doncaster Council (202005368)

REPORT

COMPLAINT 202005368

Doncaster Metropolitan Borough Council

6 July 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s decision to ask the resident to remove or reduce the height of their fence.

Background and summary of events

Background

2. The resident is a council tenant under a secure tenancy entered into in 2013. Since 2004, the council’s Arm’s Length Management Organisation (‘ALMO’) manages its properties.
3. The tenancy agreement (2010) includes a term which states:

As a secure tenant:

“2.4(j) Must not erect any structure including but not limited to sheds, garages, fences, outbuildings, green houses, porch’s, conservatories, lean to’s or pigeon lofts, on any part of your home/garden or on any adjacent open planned areas without the prior written consent of [the landlord]. Permission will not be unreasonably withheld.”

4. The tenancy terms and conditions were updated in 2017, and the relevant term states as follows:

2.10(a) You must not make any physical improvement, alteration or addition to the property or to the fixtures and fittings provided within the property at the initial letting without the prior written consent of [the landlord], unless the physical improvement, alteration or addition is included in the general consent provided in the Customers` Own Improvement Policy. (…)

Failure to obtain prior written consent from [the landlord] prior to making any physical improvement, alteration or addition will be treated as a breach of tenancy. [the landlord] will be fair and consistent in considering requests by tenants to carry out improvements and alterations to their homes. When making decisions [the landlord] will consider any potential concerns for neighbouring homes and also protect its own interest in the property.

Examples of works include: Building or removing a structure in your garden including shed, greenhouse, wall and fencing

5. Section 97 of the Housing Act 1985 states

(1)It is a term of every secure tenancy that the tenant will not make any improvement without the written consent of the landlord.

(2)In this Part “improvement” means any alteration in, or addition to, a dwelling-house, and includes—

(a)any addition to or alteration in landlord’s fixtures and fittings,

(b)any addition or alteration connected with the provision of services to the dwelling-house,

(c)the erection of a wireless or television aerial, and

(d)the carrying out of external decoration.

(3)The consent required by virtue of subsection (1) shall not be unreasonably withheld, and if unreasonably withheld shall be treated as given.

6. Section 98 of the Housing Act 1985 states:

Provisions as to consents required by s. 97.

(1) If a question arises whether the withholding of a consent required by virtue of section 97 (landlord’s consent to improvements) was unreasonable, it is for the landlord to show that it was not.

(2) In determining that question the court shall, in particular, have regard to the extent to which the improvement would be likely—

(a) to make the dwelling-house, or any other premises, less safe for occupiers,

(b) to cause the landlord to incur expenditure which it would be unlikely to incur if the improvement were not made, or

(c) to reduce the price which the dwelling-house would fetch if sold on the open market or the rent which the landlord would be able to charge on letting the dwelling-house.

(3) A consent required by virtue of section 97 may be validly given notwithstanding that it follows, instead of preceding, the action requiring it.

(4) Where a tenant has applied in writing for a consent which is required by virtue of section 97—

(a) the landlord shall if it refuses consent give the tenant a written statement of the reason why consent was refused, and

(b) if the landlord neither gives nor refuses to give consent within a reasonable time, consent shall be taken to have been withheld.

9. Section 99 of the Housing Act 1985 states:

(1) Consent required by virtue of section 97 (landlord’s consent to improvements) may be given subject to conditions.

(2) If the tenant has applied in writing for consent and the landlord gives consent subject to an unreasonable condition, consent shall be taken to have been unreasonably withheld.

(3) If a question arises whether a condition was reasonable, it is for the landlord to show that it was.

(4) A failure by a secure tenant to satisfy a reasonable condition imposed by his landlord in giving consent to an improvement which the tenant proposes to make, or has made, shall be treated for the purposes of this Part as a breach by the tenant of an obligation of his tenancy.

7. Notices or requests for permission under the tenancy agreement are required to be made by the resident to the ALMO.
8. The landlord has a Fencing Policy which relates to when it will provide a fence at its expense.

Summary of events

9. The resident sought permission from the Planning Department of the council on 12 August 2019 to erect a 1.8-metre fence. On 19 August 2019, the council decided that the fence was a permitted development – which meant that planning permission was not required under the Town and Country Planning Act 1990 and its associated regulations.
10. There is no evidence that the resident made an application before erecting the fence, as was the requirement in the tenancy agreement.
11. The resident erected a fence at 1.8 metres. The landlord was made aware of the fence in August 2020 and arranged a visit to inspect. The landlord stated that its inspection discovered the fence was 6ft and there were overgrowing hedges.
12. On 2 September 2020, the landlord wrote to the resident to say it could not allow the fencing because the neighbourhood was an open plan area with height restrictions. It did not detail the nature of the height restrictions. The landlord asked that the resident remove or reduce the fence and hedges to 3ft.
13. The resident raised a complaint on 9 September 2020 – stating he was unhappy with the landlord’s decision to request the fence be removed or reduced in height. They explained they had asked the council for permission to erect the fence.
14. On 24 September 2020, the landlord wrote to the resident and explained that it could not respond to the complaint as quickly as it would have liked due to the complexity of the case. It advised that it would respond by 6 October 2020. On 2 October 2020, the landlord extended the deadline to respond again to 12 October 2020.
15. On 7 October 2020, the landlord spoke with the resident who explained he was being treated for irritable bowel syndrome caused by stress. He informed the landlord he was seeking compensation for the distress and impact.
16. The landlord’s officer attended the property on 9 October 2020. The relevant notes of the conversation state that the resident was asked to lower the height of the fence. The reason was that the height was not ‘in keeping with the appearance of the estate”.
17. On 9 October 2020, the landlord issued a stage 1 complaint response, which can be summarised as follows:
    1. A site visit was completed on 9 October 2020 and the resident was asked to reduce the fence to 1 metre. The resident was asked to reduce the fence within 2 months.
    2. Under the landlord’s tenant’s improvement policy, permission would not have been granted for the fence at its current height. It accepted there were other properties with fences above 1 metre – and advised it would address this.
18. On 18 November 2020, the landlord responded to an MP enquiry about the fence. In its letter, it explained:
    1. The height of the fence was 1.8 metres (6ft) and this needed to be reduced.
    2. The council had not given consent for the fence but had explained that planning permission was not required as erecting a fence was a ‘permitted development’.
    3. The ALMO acted as landlord and all permission requests had to be made to it.
    4. The landlord was prepared to allow more time for the fence to be removed or the height reduced.
    5. The landlord would not pay compensation or contribute towards the fence, as it was not at fault in any way.
19. On the same date (18 November 2020) the resident requested the landlord escalate the complaint. In their escalation request they explained:
    1. Other residents on the same estate had fences of a similar height
    2. The Planning Department informed the resident that permission was not needed
    3. The fence would look ‘daft’ if it were lowered given the height of the neighbour’s fence
    4. The resident had experienced antisocial behaviour from neighbours who had been watching their comings and goings. The neighbours had also damaged the resident’s conifer – which is why they sought permission for the fence from the Planning Department
20. The landlord issued a final decision on 16 December 2020, in which it explained:
    1. A panel had been convened on 11 December 2020 to consider the appeal about the fence.
    2. The panel agreed that the landlord’s decision was correct and that the fence needed to be lowered.
    3. The landlord would be reviewing other properties with fences over 1 metre.
    4. The resident should report any anti-social behaviour to the housing officer.

Assessment and findings

21. The resident did not seek consent before erecting the fence from the ALMO as was required by the tenancy agreement. Once the fence was erected the landlord could offer retrospective consent or a ‘waiver’ (a promise not to enforce the tenancy agreement). It has, however, declined consent for a 1.8-metre fence but has agreed for a 3ft fence (0.91-metre fence). This means the resident has to pay to have it reduced.
22. The resident is dissatisfied that the landlord has asked them to remove or reduce the size of the fence. They say it is unacceptable because others in the neighbourhood have erected fences of a similar height and importantly, the landlord accepts this.
23. The tenancy term states that the landlord will not unreasonably withhold consent. The question, therefore, becomes whether the landlord’s refusal was reasonable in the circumstances. In reviewing this, the Ombudsman has considered the law as set out in Mohammed Iqbal (and others) v Rishi Thakrar (and another) [2004] EWCA Civ 592 and Mount Eden Landlord Ltd v Bolsover Investments Limited [2014] EWHC 3523. The test to be applied is an objective one and considers whether the landlord made a decision that was within a range of reasonable responses that any other landlord could arrive at. The factors to be considered are:
    1. The purpose of the consent is to protect the landlord from the tenant effecting alterations and additions which damage the property interests of the landlord.
    2. A landlord is not entitled to refuse consent on grounds which have nothing to do with his property interests.
    3. It is for the tenant to show that the landlord has unreasonably withheld his consent to the proposals that the tenant has put forward.
    4. The landlord does not need to prove that the conclusions which led him to refuse consent were justified if they were conclusions which might be reached by a reasonable landlord in the particular circumstances.
    5. While a landlord need usually only consider its own interests, there may be cases where it would be disproportionate for a landlord to refuse consent having regard to the effects on itself and the tenant respectively.
    6. It may not be reasonable to refuse consent on grounds of financial loss alone. This is because residents can be asked to contribute to the upkeep of the addition or alteration.
    7. In each case, it is a question of fact depending on all the circumstances whether the landlord, having regard to the actual reasons which caused it to refuse consent, acted unreasonably.
24. The resident’s sign-up tenancy information declares various vulnerabilities. The resident has explained that they have reported disagreements with other residents – as a reason for the fence. The landlord’s ‘Fencing Policy’ states it would consider these factors when agreeing to fund a fence. However, none of this information has been referred to in any of the landlord’s decisions.
25. The landlord has produced no evidence that the fence will affect the value of its property or the estate. There is no evidence that if the residents applied to purchase the property, the landlord would seek to include a restrictive covenant to restrict the height of fences.
26. Whilst it has referred to the estate being open plan, estates often change in appearance over many years – and the landlord has not set out any compelling reasons why this estate must remain this way. With this in mind, the landlord has not directed itself properly as to the rules around adding conditions or refusing consent – nor has it shown it has fairly considered the resident’s reasons for wanting the fence at 1.8 metres as opposed to 1 metre.
27. Even if this is not correct, the Ombudsman’s power is to consider what is ‘fair’ in all the circumstances. It is the Ombudsman’s view that a landlord should fairly consider a resident’s reasons and needs for wanting a 1.8-metre fence and consider those in balance with wanting to keep the estate open plan. The Ombudsman does not consider the landlord has done this.

Determination (decision)

28. Having considered all the evidence, the Ombudsman has determined the landlord is responsible for service failure in its decision to ask the resident to remove the fence.

Reasons

29. The landlord is not permitted to withhold consent unreasonably. The reasons given (the neighbourhood being open plan) do not appear to be compelling or fair reasons to decline consent given the resident’s circumstances, the ASB, the shortage of social housing and other high fences in the neighbourhood.

Orders

30. The Ombudsman orders that the landlord shall, within 28 days of the date of this determination:
    1. Review its decision again, considering the relevant considerations (the resident’s circumstances) in balance with the affect on the landlord’s rights and desires to keep the estate open plan. The landlord should set out in full its decision and how it has arrived at the decision.
    2. Pay the resident £150 for failing to consider relevant considerations

Recommendations

31. In considering the resident’s request again, the landlord may wish to consult with residents on the estate about fencing.
32. The landlord may wish to adopt a policy detailing the factors it will consider when deciding to grant permission for external boundary features such as fences. This will then give residents an understanding of the factors the landlord will take into account.