Darlington Borough Council (18 001 956)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 14 Jan 2019

The Ombudsman's final decision:

Summary: Part of this complaint is outside jurisdiction as it relates to a complaint regarding windows the complainant has been aware of since 2010. The other part of this complaint relating to the lack of planning enforcement over a fence is not upheld. This is because there was no fault leading up to the final decision taken by the Council.

The complaint

  1. The complainant, whom I shall refer to as Mr S, complains the Council has not enforced planning conditions requiring a neighbour to install fencing on his boundary or to install the correct window type.

What I have investigated

  1. I have investigated the Council’s actions with regard to the planning condition relating to the installation of fencing.
  2. The final section of this statement contains my reason for not investigating the rest of the complaint relating to the windows.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  3. 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

  1. I read the papers sent by Mr S.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. I gave the Council and Mr S the opportunity to comment on my draft decision.

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What I found

  1. In 2005 the Council granted planning permission for the conversion of buildings into 3 houses and the erection of 2 houses next to Mr S’s property. This permission contained a planning condition that details of windows should be approved by the Council before works on the houses started.
  2. In 2010 Mr S made an official complaint to the Council that the windows were in breach of the planning permission. Officers thought that it was not expedient to take enforcement action as Mr S’s property was not likely to suffer a material loss of privacy.
  3. In 2012 the Council granted planning permission for the change of use of land next to the bottom of Mr S’s long garden to residential use. This included conditions relating to fencing on the boundary, so they matched the rest of the boundary fencing of the new house.
  4. There was a boundary dispute between Mr S and the neighbour. In 2017 Mr S wrote to the Council. He explained the boundary dispute was resolved and he wanted 1.8 metre fencing installed and the Council to enforce the condition about the windows.
  5. The Council visited the site on 29 March 2017. The Council replied to Mr S’s letter in April 2017. It said the conditions about the fence were fully discharged by the Council’s approval of an application 2013. The Council said the works had started and there was no time limit for completion so no further action would be taken now. The Council’s letter of April 2017 says ‘we have had an enquiry from the owners with reference to implementing a different form of boundary treatment along the eastern boundary. They have been advised that this would require an application to vary condition 4 of application 13/00304/FUL. You will be consulted as part of the application process should they wish to proceed’.
  6. The Council said that officers were satisfied the opening on the gable window did not present a privacy issue, so it was not expedient to pursue enforcement action.
  7. Mr S made an official complaint, which overlapped with the Council’s April 2017 reply. In response to this complaint the Council said it would ask the planning department to examine the situation with the fence further.
  8. After some correspondence in October 2017, the Council made a decision in November 2017. Officers gave Mr S an opportunity to put forward his views and visited the site again. Officers decided the boundary treatments in the area were diverse and the non existence of the fence would not affect the character of the area. The Council said it was not in the public interest or expedient to pursue the matter using enforcement powers.
  9. The Council responded to Mr S’s stage two complaint in February 2018. About the fence, the Council said ‘given the matter was resolved by a compromise agreed during mediation I have no reason to question the decision not to take enforcement action’.

My analysis

  1. The Council accepts the planning conditions gave Mr S the expectation of a 1.8 metre closeboarded fence on the boundary of his property.
  2. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
  3. My role is not to make a judgement on whether the Council should take enforcement action. It is to decide whether there has been fault in the process, and if this fault has caused injustice, i.e changed the outcome.
  4. The Council considered the matter, visiting the site and considering all the information from both parties. The Council considered Mr S had agreed to a different boundary treatment at mediation and the distance of the fence from Mr S’s house. Its officers then reached a view, considering the impact on Mr S’s property and whether it was in the public interest to take enforcement action. I can find no fault in this part of the Council’s decision making process. I understand that Mr S disagrees with the Council’s decision not to take enforcement action however it is a decision the Council is entitled to take.

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Final decision

  1. I have completed my investigation of the complaint. This complaint is not upheld as I have found no fault that caused injustice to Mr S.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr S’s complaint that the Council did not enforce planning conditions about the windows. Mr S complained about this issue to the Council in 2010 and received a response. If he wanted to pursue the matter he could have complained to the Ombudsman at the time but did not. The Council gave Mr S details of the Ombudsman in 2011. This is a late complaint and I have seen no good reason to accept it for investigation now.

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Investigator's decision on behalf of the Ombudsman

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