Summary: Mr E complained how the Council handled a breach of planning control when his neighbour erected a fence near to where he lives. We find the Council was at fault for failing to properly understand the condition in the original plans did not explicitly remove permitted development rights. The Council apologised to Mr E for the inconvenience and distress caused. This is a suitable remedy for the injustice caused by fault.

The complaint

1. Mr E complained how the Council handled a breach of planning control when his neighbour erected a fence near to where he lives. He says the Council changed its mind on its interpretation of permitted development rights which was fundamental to the whole process.
2. Mr E says the fence has an adverse impact on the visual and residential amenity. He is also concerned the Council’s decision could set a precedent for neighbouring properties.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered information Mr E submitted with his complaint. I made written enquiries of the Council and considered information it sent in response.
6. Mr E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Enforcement

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

8. In deciding whether it is expedient to initiate enforcement action, the local planning authority will wish to take account of several different factors. This includes national and local planning policies, permitted development rights and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.

Permitted development

9. Permitted development rights are a national grant of planning permission which allow certain developments to be carried out without making a planning application to the council as local planning authority. 
10. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the details of what is permitted development.
11. Under the section relating to the erection of fences, it says the height of any fence constructed adjacent to a highway used by vehicular traffic should not exceed one metre above ground level. The height of any other fence should not exceed two metres above ground level.

What happened

12. Mr E’s neighbour (Mr F) erected a fence near to where he lives. The parish council made the Council aware of this and said the fence was out of keeping with the open plan nature of the area.
13. The Council inspected the fence. It contacted Mr F and said the fence was in breach of the allowable limit under permitted development. It told Mr F to lower the fence.
14. A local councillor contacted the Council and said permitted development rights had been removed for the neighbourhood. The Council looked at the plans and agreed permitted development rights had been removed. It told Mr F he would need to either make a planning application or remove the fence.
15. Mr F made a planning application. The Council refused planning permission and said the fence was not in keeping with the character of the neighbourhood. The planning officer also noted permitted development rights had been removed for the erection/alteration of fences.
16. Mr F’s planning consultant contacted the planning officer and asked for evidence permitted development rights had been removed. He explained the condition the Council had relied on did not specifically remove any permitted development rights relating to fences. He also said Mr F was willing to alter the dimensions of the fence to ensure it fell within permitted development. The planning officer agreed to discuss the matter with other colleagues.
17. After further discussions, the Council agreed that if Mr F altered the dimensions of the fence, it would be permitted development.
18. The Council contacted Mr E and explained it would take no further enforcement action. It said Mr F would need to make changes to the fence. It also apologised for the inconvenience and stress it had caused him.
19. Mr E complained to the Council. He said the minor changes it asked for did nothing to change the overall impact of the fence on the visual and residential amenity. He also said the Council had set a precedent for the neighbourhood and possibly further afield.
20. The Council responded to Mr E’s complaint. It said public expectations had been affected by the way it had interpreted permitted development rights in the neighbourhood. It said its initial interpretation and communication could have been better. It also said the lack of restriction on the fencing would not significantly affect the quality of the neighbourhood.
21. Mr E referred his complaint to stage two of the Council’s complaints procedure. He asked why an external consultant had to be involved for it to change its mind. He also said he disagreed with its statement about the visual amenity of the neighbourhood.
22. The Council issued its final response to Mr E’s complaint. It said interpreting conditions and legislation is not always clear cut and following a careful review, officers accepted the planning consultant’s view. It accepted its position had changed and it apologised for the inconvenience and distress it had caused him.
23. Mr E remained dissatisfied with the Council’s response and referred his complaint to the Ombudsman.

Analysis

24. The Council was at fault for failing to properly understand the condition in the original plans did not explicitly remove permitted development rights. This caused Mr E an injustice because it unreasonably raised his expectations the fence would be removed. He was also put to some inconvenience in pursuing the matter.
25. The Council has apologised to Mr E for the distress caused and for his inconvenience in pursuing the matter. I consider this to be a suitable remedy for his injustice. If the Council had acted without fault, Mr E would be in the same position that he is now with the fence being altered, but not removed.
26. Mr E is concerned the Council’s decision could set a precedent for neighbouring properties. The Council has explained in response to my enquiries that Mr E lives in an area which has permitted development rights. This is not dissimilar to most areas. The development falls within the specific dimensions as set out in legislation. The Council’s or Mr E’s views on its appearance is not relevant to its status.

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Final decision

27. There was fault by the Council, which caused Mr E an injustice. The Council has taken action to remedy that injustice and so I do not recommend anything further.

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Investigator's decision on behalf of the Ombudsman