Summary: Mr X complains the Council has misinterpreted the relevant planning legislation in deciding a gate installed in his road does not require planning permission. We will not investigate the complaint because I have seen no evidence of fault by the Council.

The complaint

1. The complainant, who I refer to as Mr X, says the Council is wrong to say a gate installed in place of a section of fence by a resident in his road can be done under permitted development rights and without the need for planning permission. He says he is not satisfied by the Council’s explanation of its position and that due to the gate’s proximity to the road it could cause a danger and problems for passing traffic and pedestrians.

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The Ombudsman’s role and powers

2. 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)
3. 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, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr X and the Council. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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What I found

5. Mr X complained to the Council that a resident in his road had, without planning permission, removed a section of fence from around the resident’s property and replaced it with a gate of the same height as the fence.
6. The Council told Mr X that what had been done amounted to permitted development and as such did not require planning permission.
7. Mr X disputed the Council’s interpretation of the relevant legislation and made a formal complaint, referring to information he had found on the Council’s website which indicated to him that planning permission was required due to the gate’s position being within 1-2m of a highway used by traffic and pedestrians.
8. The Council explained that the extract of the rules he had relied on in coming to his view did not contain all the criteria and interpretation of the legislation. It referred Mr X to the Town and Country Planning (General Permitted Development) (England) Order 2015 and confirmed that because the gate did not exceed the former height of the existing fence, it was classed as permitted development and the Council could take no further action.
9. With regard to Mr X’s concerns about highway safety, it directed him to the County Council, the Local Highway Authority, which could investigate them.
10. Dissatisfied with the Council’s response, Mr X complained to us.

Assessment

11. Mr X says he is unconvinced by the Council’s interpretation of the legislation having carried out his own assessment. However, it is the role of officers to determine the matter, using their professional judgement and we cannot review the merits of their decisions.
12. While Mr X has read some material about the rules in relation to gates, there are other criteria which apply and, in this case, because what was installed was the same height as the original fence, the work was deemed by officers to be permitted development which did not require planning permission. In the absence of evidence of fault by the Council, we will not investigate the complaint.
13. Mr X’s own injustice appears limited but if he has concerns about the safety of drivers and pedestrians, it is open to him to pursue these with the Highway Authority.
14. In responding to my draft decision, Mr X repeats his interpretation of the relevant legislation. However, it has already been noted that this does not accord with the professional opinion of planning officers and it is not our role to question their professional judgement.
15. Mr X has also referred to concerns about the removal of a hedge at the site in question which he says is protected and that title deeds information supports this view. However, the Council told him it had checked its records and confirmed there were no planning restrictions on the removal of the hedge. It told him he could seek his own legal advice if he thought the hedge had been protected by a covenant on title deeds and this is a civil and not a planning matter.

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Final decision

16. We will not investigate this complaint. This is because I have seen no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman