Summary: Mr D complains the Council failed to give accurate advice prior to and during his construction of a boundary wall that was later found to be a breach of planning consent. The Ombudsman has found no fault.

The complaint

1. Mr D complains:
1. The Council failed to give clear, accurate and timely advice prior to and during his construction of a boundary wall that was later found to be a breach of planning consent.
2. The planning condition removing permitted development rights for boundary walls on his estate has not been properly monitored or enforced.
3. The Council's enforcement notices were not properly served.
2. Mr D says as a result, he has incurred considerable expense in building and demolishing the wall.

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What I have investigated

3. I have investigated complaints a) and b). I explain at the end of this statement why I have not investigated complaint c).

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about (amongst other things) planning enforcement notices.
7. 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

8. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
9. I sent Mr D and the Council my draft decision and considered the comments I received.

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What I found

Planning enforcement

10. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
11. When an alleged breach is reported, the council will visit the site to establish whether a breach of planning control has occurred.
12. Where there has been a breach of planning control, councils may take enforcement action when it is ‘expedient’ to do so. It is for the council to decide whether it is expedient to take action. Government guidance says “Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)

Permitted development

13. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. These works can be carried out without making a planning application to the council as local planning authority.

What happened

14. Mr D’s property is in a development that was granted planning permission in the 1980s. A condition was imposed on the original planning permission removing permitted development rights for walls, fences and other structures fronting the highway to maintain an open plan principle for the estate.
15. Mr D moved into his property in late 2017. After noticing dog excrement in his front garden, and being concerned about security, he asked a builder to construct a boundary wall along the side of his property, next to the highway. The wall was to be less than one metre high, with pillars of 1.2 metres.
16. A neighbour complained to the Council about the works. The Council wrote to Mr D on 16 January 2018. It said a complaint had been received and advised:
17. “that certain householder development does not require a planning application providing it meets the criteria set out in The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). Nevertheless I have to stress any work you have undertaken is completely at your own risk and if planning permission is required, the outcome of any planning application cannot be guaranteed. Moreover if the work you have undertaken is considered contrary to planning policy and unlikely to obtain planning permission, this may result in formal enforcement action.”
18. The letter referred Mr D to the planning portal website for advice. Mr D says he looked at this and took advice from his builder, and found boundary walls were permitted development if less than one metre in height.
19. A planning enforcement officer visited Mr D’s property on 23 January 2018. Mr D says the officer: “informed me that he does not see “any problems” with erection of this wall as there were already much higher walls around my and other properties nearby, as this was a permitted development, as long as this new wall was approximately one metre in height.”
20. The officer’s note of the site visit says: “I advised the owner of permitted development rights relating to boundary walls. I felt there may be an open plan condition relating to the estate. I mentioned this to the owner and advised that the Council would write to him if this proved to be the case.”
21. The case records show the Council checked the original planning permission and determined that, due to the planning condition, Mr D’s wall would require planning permission, works should stop, and enforcement action taken.
22. The officer visited Mr D again on 7 February 2018. The officer’s note says, “I advised the owner he must cease the work because it was strongly indicating there was an open plan condition ... he advised he would submit a planning application.” The case records note the wall required permission in its own right, as it was over one metre high in places, and there was also a condition removing permitted development rights.
23. Mr D says at the visit the officer “was concerned the pillars were over a metre in height. He took some photographs and said planning permission would now be needed”. Mr D says he told the officer he would reduce the height to avoid the necessity of having to apply for planning permission, and he did this the next day.
24. The Council decided that any planning application would be refused because the wall, by reasons of siting, scale and design, would be unduly obtrusive and out of character with the existing dwelling and detrimental to both the visual amenity and character of the surrounding area. It wrote to Mr D on 26 February 2018 asking him to remove the wall and advising that a Planning Enforcement Notice would be issued.
25. Mr D complained that the Council had given him incorrect and misleading advice. He also complained that the Council was not taking enforcement action against other properties in the area that had garden walls and pillars. He asked the Council for its enforcement plan.
26. The Council issued an enforcement notice on 19 March 2018, but this was sent to Mr D’s bank and forwarded to him.
27. The Council responded to Mr D’s complaint on 27 March 2018 that it had no enforcement plan. It confirmed that no enforcement notices had been issued to neighbours relating to garden walls under one metre during the past four years. The Council did not uphold Mr D’s complaint. It said it had advised Mr D he may require planning permission, that any work undertaken was at his own risk, and that if the works were contrary to planning policy this could result in formal enforcement action. The officer had told Mr D standard permitted development rights may allow a one metre high wall, but also that there may be an open plan condition. The Council served a fresh enforcement notice on Mr D 29 March 2018.
28. Mr D remained dissatisfied. He appealed to the Planning Inspector about the enforcement notice and his complaint was escalated to the final stage.
29. The Council replied on 26 April 2018. It said it did not have the resources to monitor all building works, instead relying on complaints from residents about possible planning breaches. There was no boundary treatment like Mr D’s to the frontage of other properties on the estate. The Council apologised that the original enforcement notice had been served on Mr D’s bank. It did not agree it had given misleading advice.
30. The Planning Inspector considered Mr D’s appeal in January 2109. He did not uphold it. The Inspector found the development harmed local character and conflicted with the development plan. He therefore found the requirement to demolish and remove the wall was appropriate.
31. The Inspector considered there was a reasonable possibility that the original enforcement notice was not properly served, however the significance of this was not sufficient to uphold the appeal.
32. The Inspector’s statement also noted:
33. “From the appellant's submissions it appears that he received incorrect advice from the Council while erecting the wall, and ultimately went ahead and spent money that he otherwise probably would not have.”
34. Mr D complained again to the Council. He considered the Inspector had agreed with his view about the Council’s advice and therefore asked the Council to reconsider its stance about financial loss resulting from not receiving correct advice whilst the wall was being built. The Council replied on 4 April 2019 that it did not uphold Mr D’s complaint.
35. Mr D complained to the Ombudsman. He said he had had to spend £2000, money he did not have, to demolish the wall. He said a neighbouring property had a fence over six feet high, a five feet high hedge, and a six feet high brick wall, fronting the highway.

My findings

36. As Mr D has appealed to the Planning Inspector about the enforcement notices, the Ombudsman cannot look at any complaint about the Council’s handling of the enforcement case. However, we can look at the advice which came before this.
37. Mr D says if the enforcement officer had told him at the start the wall was a breach of planning control, he would not have carried on building it. He complains the advice the Council gave him on 23 January 2018 was not clear or correct, because the officer did not say there were no permitted development rights, he would not get planning permission if he applied for it, or advise him to stop building. Mr D says the right advice was not provided until he received the Council’s letter on 28 February 2018, after he had finished building.
38. I cannot say exactly what advice Mr D was given at the site visits of 23 January 2018 and 7 February 2018 as there are no recordings and his and the officer’s accounts differ.
39. However, the Council’s letter of 16 January 2018 makes clear that Mr D was undertaking works at his own risk and that he should seek advice on whether planning permission was needed. It was for Mr D to ensure that what was being built was authorised (either by express consent or compliance with permitted development rights), otherwise it was at his own risk.
40. As it was unclear on 23 January 2018 whether a planning condition existed, Mr D could have stopped building the wall until the matter had been clarified. It was not fault by the Council for the officer to have to check the position. He said he would write to Mr D, but instead he visited on 7 February 2018.
41. It appears at the second visit that Mr D understood if he reduced the height of the wall, he would not need to apply for planning permission. It was at his own risk to continue with works without the correct planning consent. There was no fault by the Council.
42. Mr D complains the Council has failed to take action against similar walls in the area and he has sent me photographs of hedges forming boundaries of other houses. The Council says it has seen no breaches of planning control. Regardless, enforcement action by councils is discretionary; it would not be fault for the Council to not take such action if it determined it was not expedient to do so. Mr D is free to complain to the Council about the alleged breaches if he wishes. In addition, the Council’s actions in relation to Mr D’s neighbours, even if there was fault, do not cause him any injustice and are not evidence of fault in his case.

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Final decision

43. There was no fault by the Council. I have completed my investigation.

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Parts of the complaint that I did not investigate

44. I have not investigated complaint c), that the Council's enforcement notices were not properly served. This is because the matter has been considered by the Planning Inspector.
45. The Planning Inspector acts on behalf of the responsible Government minister. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)

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Investigator's decision on behalf of the Ombudsman