Summary: The Ombudsman will not investigate Mr X’s complaint that the Council decided not to take enforcement action to remove a gate and fence erected two years ago. The Council has considered relevant information and is entitled not to enforce. There is insufficient evidence of fault.

The complaint

1. Mr X complains the Council has failed to take enforcement action against a neighbour who two years ago erected a gate that blocks a footpath which is a short cut to the car park behind nearby properties. Mr X has a health condition and would not feel safe walking longer distances to the car park.

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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, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

3. I have considered Mr X’s information, comments and reply to the draft decision statement. I have discussed the complaint with him by telephone. I have considered the Council’s reply to his complaint. The information includes photographs of the gate and path. I have considered internet street scenes of the area.

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What I found

4. Mr X tells me the gate was erected around Spring 2018. He did not report the matter to the Council until this year. He did not want trouble with the former tenants of the property who had put up the fence. Mr X does not know if he has a legal right to use the path or who owns the land. He tells me the path was used by residents on the estate. He says the Council told him the land is owned by the property which erected the fence. The photographs show the gate is not locked and it would be possible to walk along the path. The fence creates the impression of private land.
5. The Council’s planning enforcement officer and manager visited the site and has spoken to relevant parties. The Council says the fence, which is adjacent to a highway, is within the permitted development height of 1 metre. However, it beaches a planning condition for the estate which forbids a fence or gate between a dwelling and the adjacent highway. The footpath is a highway.
6. The Council decided it is not expedient to take enforcement action. The Council says until Mr X complained it had not received complaints since the gate was put up some 2-3 years ago. There is insufficient harm to enforce.

Analysis

7. I will not investigate Mr X’s complaint for the following reason:
1. There is insufficient evidence of Council fault. The Council has discretion to enforce or not. It has considered relevant information in making its decision.
2. Investigation is not likely to result in a different outcome.

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Final decision

8. The Ombudsman will not investigate Mr X’s complaint that the Council decided not to take enforcement action to remove a gate and fence erected two years ago. The Council has considered relevant information and is entitled not to enforce. There is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman