Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has not taken enforcement action against his neighbour Mr Y due to the height of their fence. The Council considers the fence is not high enough to be a breach of Mr Y’s permitted development rights. There is not enough evidence of fault by the Council in the process it followed to make its decision. The Ombudsman cannot criticise a properly made professional judgement decision by a council.

The complaint

1. Mr X lives next door to Mr Y. Mr X complains the Council has decided not to take enforcement action against Mr Y for a fence his neighbour erected between their gardens. Mr X says the fence is too high because it measures 2.6 metres above ground level on his land.
2. Mr X says the fence blocks light to his dining room. He says the matter has made him and his wife ill. He wants the Council to take enforcement action against Mr Y.

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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’. 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
• we cannot achieve the outcome someone wants.

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

4. 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)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• viewed relevant online maps;
• issued a draft decision, inviting Mr X to reply.

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What I found

6. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the type of development which does not require planning permission. This is called ‘permitted development’. A fence would not require planning permission and would be permitted development as long as it is not more than two metres in height above ground level anywhere on the owner’s property.
7. When a council receives a report where enforcement might be required, the Ombudsman expects it to carry out an investigation. Officers should gather relevant information, record the reasons for their decision, and tell the complainant those reasons. Even when a council decides not to enforce, we would expect it to record its reasons and explain its decision to the complainant.
8. I have not seen enough evidence of fault by the Council in how it dealt with Mr X’s report about Mr Y’s fence to warrant an Ombudsman investigation. In response to Mr X’s report, officers visited the site and measured the fence. They determined the fence came under the permitted development height of two metres, at 1.85 metres. They explained their reasons to Mr X by letter and also spoke to him.
9. I recognise Mr X disputes the way the Council reached its view on the fence’s height. He considers the Council should be taking account of the height of the boundary from his land, which he measures as 2.6 metres. But the Town and Country Planning (General Permitted Development) (England) Order 2015 says a fence would be permitted development if it is not more than two metres in height above ground level on the owner’s property. There is insufficient evidence to indicate the Council’s method of assessing the fence involved fault.
10. Even if the Council agreed the fence was over the permitted development height, I cannot find it would then take enforcement action against Mr Y. I say this because councils do not have a duty to use their enforcement powers. The powers are discretionary. It is for council officers to use their professional judgement to decide what action they should take if they identify a planning breach. So even if the Ombudsman did investigate, it would still be for the Council to decide whether to take the action Mr X seeks.

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Final decision

11. The Ombudsman should not investigate this complaint. This is because:
• there is not enough evidence of Council fault in how it reached its professional judgement that it could not take enforcement action against Mr Y’s fence.
• an Ombudsman investigation would not achieve the outcome Mr X seeks.

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Investigator's decision on behalf of the Ombudsman