Summary: Mr X says the Council failed to check that a developer had built a fence between the development site and his home before it discharged a condition of the planning permission. There was fault by the Council which caused injustice to Mr X. The Ombudsman is satisfied the Council has agreed action to remedy the injustice.

The complaint

1. Mr X says the Council failed to check that a developer had built a fence between the development site and his home before it discharged a condition of the planning permission to do with landscaping.
2. The Council offered to pay Mr X £1500 to build a fence on his own land as well as a goodwill payment of £100 to account for the delay in resolving matters. Mr X considers the sum is inadequate. This is partly because it does not seemingly account for the loss of land as the fence will be sited within his property. Mr X also says the cost of maintaining the fence will be borne by him and the Council’s takes no account of this burden. Mr A also says the offer does not take account of the loss of privacy he faced over the past three years.

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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. 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

5. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

6. The Council granted planning permission for a major development comprising 50 homes with associated access, landscaping, substation and public open space in 2015. Condition 5 of the planning permission required the developer to submit details of boundary treatments around Mr X’s home for approval by the Council before the start of any groundworks. The duly approved boundary treatments should then be constructed in accordance with the approved plans and retained as such thereafter.
7. However, the developer applied to discharge conditions of the planning permission without including any boundary treatments around Mr X’s property. The Council did not notice the omission and approved the application to discharge the conditions.
8. The Council says it tried to negotiate the erection of a fence with the developer but the developer refused to erect one. The Council has no power to compel the developer as it approved the discharge of condition application.
9. At the conclusion of its complaints procedure, the Council offered Mr X a sum of £1600 to cover the costs of erecting a fence within his curtilage and of a length to match the fence it would have asked the developer to provide. The sum also includes £100 as a gesture of goodwill to Mr X because of the delay in dealing with the matter.
10. Mr X is unhappy with the Council’s offer. He feels the Council should pay an amount to construct and maintain the fence in perpetuity. The sum should also compensate him for the loss of amenity because there was no fence in place for over three years since the development started. Mr X is dissatisfied that the fence would be built within his own land and not the developer’s land and says this will cause problems with his property boundaries.

Agreed action

11. The Council already accepted fault in this matter and so it fell to me to consider whether its proposed remedy is reasonable to address the injustice suffered by Mr X.
12. It is clear Mr X does not want the fence to be built within his curtilage without a further financial remedy from the Council. The Council’s response to his complaint did not suggest the sum could be negotiated further.
13. I initially recommended the Council negotiate the building of a fence with the new owners of properties that border Mr X’s home. However, the Council pointed out the land in question has now passed to a private management company. Over a long period, the Council had attempted to persuade the developer to erect a fence on the land without success. It is unlikely the management company will now agree to erection of a fence on the land.
14. I am also aware of the Ombudsman’s decisions in complaints involving Mr X’s neighbours. There the Council proposed the same amount of money for the erection of a fence within their own curtilage. The Ombudsman was also satisfied with the calculation of the sum. I am satisfied the same judgement should apply to the same facts.
15. I note the goodwill payment of £100 offered by the Council because of a delay in dealing with the matter. I recommended an additional payment of £100 to account for the reduced privacy Mr X was faced with because of the delay. The goodwill payment is also the same as the sum this service recommended in the other complaints. This makes a total of £200 in terms of goodwill. The overall sum payable to Mr X being £1800.

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Final decision

16. There was fault by the Council which caused injustice to Mr X. The Council has agreed action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman