Summary: We will not investigate Mrs B’s complaint about the Council’s response to a breach of planning control. This is because there is not enough evidence of fault to justify an investigation.

The complaint

1. The complainant, who I will refer to as Mrs B, complains about the Council’s investigation into a breach of planning control she reported. Mrs B says a neighbour of a house she owns has erected fences and a gate along an alleyway at the rear of the properties to extend their garden. Mrs B says this has blocked the alleyway for other residents. Mrs B complains the Council has decided not to take any further action despite the property owner not complying with an enforcement notice issued by the Council. Mrs B would like the Council to start prosecution proceedings.

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The Ombudsman’s role and powers

2. 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. 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)

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How I considered this complaint

4. I considered information provided by Mrs B and have viewed the area online.
5. I considered the Ombudsman’s Assessment Code.
6. Mrs B had the opportunity to comment on a draft version of this statement. I have considered her comments before making a final decision.

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My assessment

7. The Council says:
• The fences and gate are permitted development, which means they are not a breach of planning control.
• It served an enforcement notice for the unauthorised change of use of this land from highway to residential garden.
• The enforcement notice was not complied with. But, after seeking legal advice, the Council decided not to pursue the matter further because the enforcement notice would not result in the removal of the fencing.
• The county council is responsible for dealing with obstructions to the highway.
• Mrs B, as someone who has rights over the alleyway, is in a better position to secure removal of the gate and fences.
8. I have not seen any information to suggest the Council is wrong to say the fencing and gate are permitted development. This may seem surprising because the property owner does not appear to own the alleyway land. But, the law (General Permitted Development Order, Schedule 2, Part 2, Class A) says such fencing is allowed.
9. This means the Council could only take planning enforcement action about the use of this land. The Council took action by issuing an enforcement notice.
10. Mrs B is aggrieved that the Council has decided not to take any further action despite the enforcement notice not being complied with. But, the Council has explained the factors it took into account when making this decision. The main factor being that compliance with the enforcement notice would not result in the fences or gates being removed. The information does not suggest the Council’s decision was affected by fault. This means we cannot say the Council’s decision not to take further action was right or wrong.
11. It is possible that Mrs B’s expectations were raised by the Council issuing an enforcement notice which was actually quite limited in what it could achieve. But, this does not mean the Council was at fault for deciding not to pursue the enforcement notice at court.

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Final decision

12. We will not investigate this complaint. This is because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman