Summary: We will not investigate Mrs X’s complaint about the Council threatening her with enforcement action for a garden fence, and not advising her how to make a planning application to regularise it. There is not enough evidence of fault in the Council advising Mrs X of the possibility of enforcement action to justify us investigating. It was for Mrs X to make her planning application, and seek her own professional help if required. Mrs X’s complaint about the Council’s decision not to enforce against a neighbour’s extension does not cause her a significant personal injustice warranting investigation. We will not investigate the Council’s internal complaint-handling process in isolation where we are not investigating the core issues which gave rise to the complaint.

The complaint

1. Mrs X complains the Council:
1. threatened her with planning enforcement action regarding a temporary fence she erected in her garden;
2. did not explain how she could get planning permission for the fence;
3. has not taken enforcement action against her neighbour’s ground-floor rear extension;
4. delayed in responding to her complaints.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

3. I considered information provided by Mrs X, the Ombudsman’s Assessment Code, and Mrs X’s comments on my draft decision. I also viewed relevant online maps.

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My assessment

4. If the Council had taken formal action against Mrs X regarding the fence she installed in her garden by serving her with an enforcement notice, the matter would have been outside our jurisdiction. Mrs X would have a right of appeal to the Planning Inspectorate if the Council served such a notice. The Council did not serve Mrs X with an enforcement notice, but did advise her the structure was unauthorised and may be subject to enforcement.
5. Mrs X says she took this as a threat because the Council did not say definitively that the fence required planning permission. That does not give grounds to say the Council’s advice letter amounted to an enforcement threat. The Council’s approach would have made its correspondence less of a threat than if it had told Mrs X at that point that the fence definitely required permission.
6. Mrs X also says she took the Council’s contact as a threat because she believed national planning guidance meant the fence did not require permission. She quotes the national government information on when permission would not be required for fences, gates and garden walls. She says it demonstrates she did not require planning permission for her fence. Part of the criteria states a structure would not require planning permission if:

• ‘it [the fence, wall or gate] would not exceed two metres in height (from ground level) if elsewhere; or
• if an existing fence, wall or gate already exceeds the limits above, that its height would not be increased’.

7. Mrs X says ‘the substitute structure [a fence] was lower than the height of the original [hedge]’. But this planning exemption only applies where someone has replaced an existing fence, wall or gate with another fence, wall or gate of the same or lesser height. The original boundary treatment Mrs X’s new fence replaced was a hedge. So even if the removed hedge was taller than the fence Mrs X’s used to replace it, these criteria would not exempt from planning permission a new fence higher than two metres.
8. The Council considered the new fence may be too high to be exempt from planning permission, so invited Mrs X to apply for permission. Councils have a duty to advise people of their view in planning enforcement matters. Doing so does not amount to a threat. There is not enough evidence that it was fault for the Council to tell Mrs X about the possible enforcement implications if she sought to keep the fence.
9. Mrs X says the Council became involved in her dispute with the neighbour, who had cut down her original boundary hedge, because the neighbour is a former Council planning employee. Mrs X has not provided enough evidence to support this allegation. The Council was also not involving itself in a neighbour dispute. That dispute was resolved separately in court. The Council’s involvement was in the planning issue it considered was raised by Mrs X’s installation of a fence to replace the hedge.
10. Mrs X says the Council has not explained how she can get planning permission for her fence. National government websites such as the Planning Portal provide advice and guidance on how to make planning applications, as does the Council’s own website. That information is available for all to use when making their application. If Mrs X was unclear on how to make an application, it was for her to seek advice from her own planning professional.
11. Mrs X says the Council should have taken enforcement action against her neighbour’s ground floor extension. Even if there has been fault by the Council in determining the extension is covered by Permitted Development rights and does not require separate planning permission, there is no significant impact on Mrs X’s property’s amenity caused by the matter. From the online map information, Mrs X’s house has large grounds and is a long distance away from the rear of the property where the extension was built. I note Mrs X says she size of her property and location of her home has no bearing on what has occurred. But the distance between her house and the boundary has a direct relevance on the assessment of the potential for planning harm or impact on her property’s amenity caused by the neighbour’s extension beyond that boundary. There is no significant personal injustice caused to Mrs X by the extension which would give us grounds to investigate.
12. Mrs X’s complaint about the extension infers that if the Council was considering enforcement against her fence, it should have done the same with the extension. But each planning matter is dealt with on its own facts. It does not follow that because a council considers enforcement for one development that it must do so for any other.
13. The Council has delayed in responding to Mrs X’s concerns and completing its internal complaint process. But we will not investigate a council’s own complaint process in isolation where we are not investigating any of the substantive issues which gave rise to the complaint to the council. We do not consider it to be a good use of public resources to do so. That limitation applies here, so we will not pursue this part of the complaint.

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Final decision

14. We will not investigate this complaint because:
• there is not enough evidence of fault by the Council in advising Mrs X of the possibility of enforcement action against her fence;
• it was for Mrs X to make her own planning application to regularise the fence, or seek her own professional help to do so;
• there is not enough evidence the neighbour’s extension causes Mrs X such a significant personal injustice to justify us investigating;
• we will not investigate the Council’s complaint-handling process in isolation where we are not investigating the core issues which gave rise to the complaint.

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Investigator's decision on behalf of the Ombudsman