Summary: Mrs Y complained the Council have failed to take enforcement action against her neighbour for putting up a fence which is above the two-metre limit allowed under permitted development regulations. The first part of the complaint relates to a planning application granted several years ago which is outside our 12-month time limit and so we will not investigate this. For those parts of the complaint that are within our time-limit, there was no fault in the way the Council made its decision not to take enforcement action.

The complaint

1. Mrs Y complained the Council failed to take planning enforcement action against her neighbour for putting up a fence which is above the two-metre limit allowed under permitted development regulations.
2. Mrs Y said the fence, which is opposite her home, affects her outlook and reduces the area available for a vehicle turning circle within the development. She said this means any large vehicles are unable to turn before leaving the development and must reverse onto a busy road.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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)

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How I considered this complaint

6. I read the complaint and discussed it with Mrs Y. I read the Council’s response to the complaint and considered documents from its planning files, including the planning enforcement officer’s report.
7. I have written to Mrs Y and the Council with my draft decision and given them an opportunity to comment. I have considered the comments received before making this final decision.

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What I found

8. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

14. Mrs Y owns a property in a rural area. It is on a private road which joins onto a busier highway. The land next to her has been subject to several planning applications, including in 2015 and 2016.
15. The 2015 planning application received comments from the County Council, acting as the highway authority, which advised a turning circle be included in the development to prevent vehicles reversing onto the public highway. This application was subsequently withdrawn by Mrs Y’s neighbour. A further application was made in 2016, which did not receive comments from the highway authority. The Council approved that application without conditions.
16. Once the development was complete, the neighbour built a 2.4metre fence along his boundary. Part of the fence runs parallel to the front of Mrs Y’s property. Mrs Y feels the Council should have put conditions in place to keep a turning circle, as had been suggested by the highway authority in 2015. She says that if the fence had not been built, large vehicles would not have to reverse onto the main road.
17. The Council’s planning enforcement officer visited the property to inspect the fence in February 2019 after Mrs Y complained about the fence height. The Council found the fence was between 30 and 40cm higher than the two metres allowed under permitted development regulations. The planning enforcement officer made a case note about the visit, confirming the fence was higher than is allowed under permitted development. The note shows that the officer discussed the matter with a senior colleague and agreed to write to the neighbour but decided it would not be in the public interest to take formal enforcement action.
18. The Council did write to the neighbour to say that the fence should be reduced to the two-metre height or a planning application should be made, so the Council could consider if the fence was acceptable. The Council confirmed its actions to Mrs Y.
19. Mrs Y complained to the Council about its lack of enforcement action in March 2019. The Council’s planning department responded, explaining its decision not to enforce against the neighbour. Mrs Y then complained to the Council again through its website in April 2019. The Council responded, explaining that it was not in the public interest to pursue enforcement action against the neighbour as the fence did not cause significant harm to the public and consequently would not be pursuing the matter further.

My findings

The 2016 planning application decision

20. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
21. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
22. Mrs Y says she did not come to us sooner, because the lack of conditions only became a problem when the fence was put up and the turning circle reduced. However, our time limit runs from the moment the individual had cause to complain to the Council. Mrs Y was aware of the planning decision in 2016 and she could have complained to us much sooner. I see no good reason to investigate the Council’s decision to approve the application without conditions now.

The Council’s decision not to take enforcement action

23. The Council visited the site and measured the fence. It found the fence was higher than the permitted development limit and told Mrs Y’s neighbour this breached planning controls. The Council told the neighbour the fence should either be reduced, or an application made for the Council to consider approving the fence height retrospectively. This did not happen.
24. The Council’s planning enforcement officers used their judgment to decide whether it was in the public interest to enforce for the breach. It has recorded this decision in its records having considered the evidence available, including photographs taken at the site visit. The Council decided it would not enforce against the breach as it was not causing the public harm.
25. The Council’s planning enforcement officer recorded in the site visit record that following its inspection it had found a breach but used their professional judgement to decide that it was not suitable for the Council to enforce. As the Council is able to use its discretion to make this decision, I have found no fault in the Council’s decision to take enforcement action.

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Final decision

26. I have completed my investigation because the Council was not at fault in deciding not to take enforcement action in this case.

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Investigator's decision on behalf of the Ombudsman