Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has failed to taken enforcement action for a breach of planning control which is on land next to a footpath he uses. The Council has explained its actions and has not caused Mr X an injustice.

The complaint

1. Mr X complains the Council has failed to take enforcement action for a breach of planning control following the erection of a wall and fence which encroaches onto a footpath. Mr X says he cycles along the footpath and feels unsafe doing so. There was an unfenced drop during work and now the fence is close to the path. Mr X says he feels aggrieved by the Council’s failure to take enforcement action.

Back to top

The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council.

(Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. I have considered Mr X’s comments, information, photograph, and reply to my draft decision statement. The Council has provided the complaint correspondence and communications with Mr X between August and 27 November 2019.

Back to top

What I found

4. During the summer of 2019 it was reported to the Council that occupiers of the land had removed trees, a hedgerow and were undertaking building work. The Council says they advised the occupier that the erection of a fence (and wall) might require planning permission depending on its height and proximity to the highway.
5. On 15 August the Council wrote to Mr X and explained it was more effective for the County Council to act as the highway authority and owner of the land. The County Council had said it would serve a notice on the occupier under the Highway Act 1980 (section 143). This requires the occupier to remove a structure. If not done within the required time the highway authority can remove and recover the expenses from the occupier. In October Mr X told the Council the wall and fence are still in place.
6. The Council has told Mr X that a 2017 planning approval is relevant to the site. It has explained that enforcement action is discretionary. The Council decided that enforcement is not expedient, regarding the fence and wall. It invited a retrospective planning application. On 27 November the Council told Mr X that it has received a retrospective application which it will deal with.
7. There is reference in the October correspondence to the erection of earthworks at a site. The Council served a stop notice and enforcement notice which it says the occupier has appealed to the planning inspector. The Council issued some public statements about the position.
8. Mr X does not live near the site which does not affect his property or amenity. He says the Council has failed to always respond to him, has failed to take enforcement action, and has not provided reasonable information. He says the Council: ‘allows members of the travelling community to openly and regularly flout planning laws…’ He refers to the ‘illegal expansion of this site’ and failure to comply with planning conditions.

Analysis

9. I will not investigate this complaint for the following reasons:
10. The Ombudsman investigates fault causing injustice. The situation does not cause Mr X injustice. The site is not near his home. The impact on Mr X involves his use of a footpath. There is no suggestion that he cannot use the path and there is no reason to investigate.
11. Investigation will not add to the current position. It appears the two Councils have taken some action. The County Council, as the highways authority has the power to restore the land or deal with an infringement of the highway (footpath). We do not have a complaint against the County Council.
12. The Council is correct that enforcement action is discretionary and it is a matter for it to decide if action is ‘expedient’. The Council has told Mr X which planning approval applies to the land. If he wants more information about the history of the site and planning conditions, he can inspect the planning file which is open to the public.
13. The Council has communicated appropriately with Mr X. It gave him useful information in its replies to him dated 15 August, 18 October, 30 October, 4, 14 and 27 November. There is no injustice.

Back to top

Final decision

14. The Ombudsman will not investigate Mr X’s complaint that the Council has failed to take enforcement action for a breach of planning control on land next to a footpath he uses. The Council has explained its actions and has not caused Mr X injustice.

Back to top

Investigator's decision on behalf of the Ombudsman