Summary: Mrs Y complained about the way the Council dealt with planning issues regarding a fence erected along her property’s boundary. We have found fault by the Council in the way it responded to her concerns, but not with the way in which it made its decision about enforcement action. The Council has agreed to remedy the injustice this fault caused by apologising and making a payment to Mrs Y to reflect her distress and time and trouble.

The complaint

1. The complainant, who I am calling Mrs Y complains about the way the Council dealt with planning issues regarding a fence erected by a neighbour along the boundary with her driveway. Her representative, Mr X, has assisted her with the complaint. Mrs Y says the Council failed to:

• respond promptly when she first raised her concerns about the fence;
• accept the fence did not comply with planning permission;
• take proper account of the risks caused by the height of the fence and its effect on the visibility of pavement users, in particular small children, to drivers of vehicles exiting her driveway; and
• take appropriate enforcement action to ensure the fence complied with the planning permission granted.

2. Mrs Y says, because of the Council’s failures, the fence continues to pose a safety risk, causing her upset and worry.

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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. 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)
5. 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

6. I spoke to Mrs Y and Mr X, made enquiries of the Council and read the information they and the Council have provided about the complaint.
7. I invited Mrs Y and Mr X, and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

Planning law and guidance

8. Planning permission may be granted subject to conditions relating to the development and use of land. Where necessary for approval of a permission, a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must specify the condition and apply for it to be discharged by the local planning authority (LPA).
9. LPAs can take enforcement action if they find planning rules have been breached.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, LPAs should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages LPAs to resolve issues through negotiation and dialogue with developers.
11. Although planning enforcement is discretionary, we expect LPAs to respond to reports of planning breaches, investigate and decide whether or not to take enforcement action without delay.

What happened

Background

12. I have set out a summary of the key events below. It is not meant to show everything that happened.
13. In June 2020, the Council, as the LPA, granted planning permission for a development at a property neighbouring Mrs Y’s property. The permission included a condition requiring details of the boundary fencing to be submitted to and approved by the Council in writing before use commenced. The reason for the condition was neighbour amenity.
14. The plan submitted with the application (Plan A) showed the boundary with Mrs Y’s property running up to up to the front boundary with the pavement. Photographs show a fence of about 1.05m running along this boundary. Plan A proposed replacing this with timber acoustic fencing stopping some 545mm short of the pavement.
15. Mrs Y’s neighbour erected a 2m high wooden fence along the boundary with her driveway extending up to the pavement. It was not set back from the pavement by 545mm as shown in Plan A.

Council’s response to Mrs Y’s concerns about the fence

16. Mrs Y told the Council she was concerned about the new 2m fence because the last 545mm section restricted her view of pedestrians using the footpath, when exiting her driveway by car across the pavement onto the road.
17. One of the Council’s planning officers replied on 2 October. He said details of the fencing had not yet been approved by the Council and they had contacted the applicant to agree a way forward.
18. Mrs Y did not hear anything further and Mr X contacted the planning officer on her behalf. Mr X provided photographs of the new fence. He advised it was not set back from the pavement by 545mm as shown on the approved plan - Plan A. In November the planning officer confirmed the development would need to comply with the approved plan and conditions and they were in the process of ensuring this was done. Mr X says he spoke to the planning officer on 30 October and asked for a site meeting. The planning officer had said he would speak with the planning team manager. Mr X heard nothing further.
19. The applicant applied to the Council to discharge the planning condition relating to the boundary fencing. The drawings submitted by the applicant on 3 December – Plan B – showed the new fencing along the front and other side of the property, but not the fencing erected along the boundary with Mrs Y’s driveway. On 10 December the applicant submitted details of the type of fencing used.
20. Mr X contacted the planning officer again for an update on 16 December.
21. On 18 December the Council considered the information from the applicant about the boundary, decided this was satisfactory and discharged the planning condition.
22. Mr X did not receive a response to his email of 16 December. In January 2021 he contacted the planning team manager. The manager initially said she understood the fence had been installed in accordance with the approved plans. The information I have seen shows the manager contacted the highways team at this point to ask for its views. After further discussion between the manager and Mr X, a planning enforcement officer told him she would ask the applicant to move the fence back 0.6m in accordance with the approved plans.
23. In February, the enforcement officer told Mr X the applicant had agreed to reduce the height of the fence along the boundary with Mrs Y’s driveway from 2m to 1.2m for a distance of 0.6m back from the pavement. The applicant carried out this change.
24. Mr X and Mrs Y were not satisfied with this proposal. They felt a height of 1.2m would still restrict Mrs Y’s view of pedestrians, particularly small children. The enforcement officer said, having consulted with the Council’s legal team, they could not take enforcement action against the applicant because there was a conflict between the position of that section of the fence as shown on Plan A and Plan B.

Council’s decision on enforcement action

25. Mr X disagreed there was any conflict regarding the position of the disputed section of the fence in the two plans. He raised this with the planning team manager.
26. On 18 March the manager replied to Mr X. She said she understood his points and concerns about the position of the fence and effect on visibility for drivers exiting Mrs Y’s driveway. She had reviewed these with the Council’s highways, enforcement and legal teams. After considerable discussion they considered the fence as built would not result in significant harm to pedestrian or highway safety to warrant enforcement action. Mrs Y’s driveway was large enough to allow her to exit safely and the cut down element of the fence allowed pedestrians to see a car exiting the driveway.
27. The Council confirmed it did not consider it expedient to pursue enforcement action and would not be take any further action regarding the fence.
28. In response to Mrs Y’s complaint to us, the Council accepted there were initial delays in its reply to Mrs Y’s concerns and it wrongly raised her expectations in some of its communications about the action it would take. It considers an apology is an appropriate remedy for the distress this caused Mrs Y.

Analysis – was there fault by the Council causing injustice?

The Council’s response to Mrs Y’s concerns.

29. Based on the information seen so far, my view is there were unreasonable delays in the Council’s communications with Mrs Y and Mr X. There was some weeks delay in the Council’s initial response to the concerns. There was a further delay from November 2020 to January 2021. I consider these delays were fault and caused Mrs Y distress.
30. In my view, the Council also gave inconsistent responses about any planning breach, what was shown on the plans submitted and the action it proposed to take. I consider this inconsistency was due in part to internal communication failures and was fault by the Council. Mrs Y was wrongly led to believe her safety concerns would be resolved, causing her distress.

Discharge of the planning condition

31. Mrs Y and Mr X had told the planning officer about the fence not being erected in accordance with the approved plans, and their safety concerns before the application to discharge the planning condition was made. In my view, these issues were relevant to the Council’s decision to discharge the planning condition. I have not seen any evidence the Council considered these issues before making its decision and in my view, this was fault.
32. I do not consider this fault caused Mrs Y injustice. The information I have seen shows the applicant refused the Council’s request to remove the disputed 0.6m section of the fence. The applicant only agreed to reduce the height of that part of the fence after negotiation with the Council. The Council then decided, once the reduction had been made, it was not expedient to take any enforcement action. In my view it is likely the outcome would have been same had the issues been properly considered before the discharge of the condition.

The Council’s decision about enforcement action.

33. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We can only decide whether there was fault in the way it was reached.
34. The evidence I have seen shows the Council’s officers visited the site and viewed the fence as built. There were discussions between the planning, highways and legal teams about the safety concerns and information Mr X provided. It had obtained agreement from the applicant to reduce the height of the disputed section of the fence.
35. The Council was not required to take enforcement action. It had discretion to decide whether to do so. I am satisfied it properly considered the relevant information before deciding it was not expedient to take enforcement action in this case. I do not consider there was fault by the Council in the way it made this decision.

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Agreed action

36. To remedy the injustice caused by the above faults, and within four weeks of the date of our final decision, the Council has agreed to:

• apologise to Mrs Y for its delays and communication failures when responding to her concerns.
• pay Mrs Y £150 to reflect the distress, time and trouble caused by its delays and communication failures. This is a symbolic amount based on the Ombudsman’s published guidance.

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Final decision

37. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman