Summary: We will not investigate this complaint about a lack of enforcement action. There is not enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. The complainant, I shall call Mr X, says the Council has failed to take enforcement action against an unauthorised fence which has been in place for more than a year.
2. He says the fence obstructs his view of the road when he exits his drive. He wants the Council to have the fence removed. And to listen to those who object to it.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X’s neighbour applied for planning permission for extensions to their property and for a fence which was already in place. During the application process, the Council advised the neighbour it could not support the proposal including the fence. The applicant removed the fence from the application which was then approved.
7. The Council says it then visited the site several times. It asked the neighbour to remove or lower the fence within a reasonable time, or formal enforcement action would follow.
8. Against the Council’s advice, the neighbour put in a retrospective planning application for the fence. This was refused. The neighbour has now appealed to the Planning Inspectorate against the refusal. The Council told Mr X it would neither be expedient, nor good practice to take enforcement action while an appeal is in progress.
9. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control. Government guidance 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.” The Council is entitled to take an informal approach to encourage compliance.
10. Mr X and others will have the opportunity to raise their objections as part of the appeal process.
11. The Council accepts it delayed in responding to Mr X’s complaint. It has apologised for this which I consider to be a suitable remedy for the delayed reply.

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Final decision

12. We will not investigate Mr X’s complaint because there not enough evidence of fault in the Council’s consideration of the breach of planning control. Further investigation would not lead to a different outcome, as there is a planning appeal in progress which is likely to provide a resolution.
13. The Council’s apology is a suitable remedy for the delay in its response to Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman