Summary: Mr X complains about inaction by the Council on a planning enforcement complaint. There was fault with the Council’s handling of the planning enforcement matter as well as its handling of Mr X’s complaint. However, the complainant was closed because the Ombudsman cannot achieve the outcome Mr X wants.

The complaint

1. I refer to the complainant here as Mr X. Mr X complains about inaction by the Council on a planning enforcement complaint.
2. The planning enforcement matter involves a developer’s failure to construct a fence between a recently developed plot and Mr X’s home. The fence is required by a condition of the planning permission.
3. Mr X is distressed because his home is overlooked by the new neighbours. Mr X is also upset because of the delay by the Council in acting on the matter.

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The Ombudsman’s role and powers

4. 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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

5. 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

6. I examined the complaint and background information provided by Mr X. I read the email exchanges between Mr X and the Council as well as its stage one complaint response to Mr X. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council. I considered the comments of both parties on the statement.

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What I found

Guidance on planning enforcement

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
8. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) 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.
9. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the Magistrates’ court.
10. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This makes clear enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Background

11. The Council granted planning permission for a development close to Mr X’s home. It imposed a condition requiring the developer to complete boundary treatment before first occupation of the houses. Part of the proposed boundary treatment involved construction of a close boarded fence between one of the plots and Mr X’s home. The Council discharged the condition in January 2020. But the fence was not constructed.
12. I will not set out full details of Mr X’s contact with the Council in the time since then for reasons of brevity and anonymity. Briefly, Mr X contacted planning enforcement officers; the planning enforcement manager; and the Council’s complaints team in his effort to get the Council to ensure the developer constructed the fence.
13. The planning enforcement case officer suggested the possibility of a breach of condition notice in a letter to Mr X. The officer wrote to Mr X following the Council’s stage one complaint response. The letter did not refer to the fence but to other boundary treatment details on the overall scheme. The fence was the reason Mr X contacted the Council and not, for instance, removal of trees or a gap in a hedge row that the enforcement offer referred to in his letter.
14. Although the case officer did not refer to the fence in the letter to Mr X, there had been contact between the officer and the developer. The developer told the case officer that the boundary treatment shown on the plans had been drawn in error as the fence was set to be on the same place as an existing stone wall between Mr X’s home and the neighbouring plot. The developer said a fence could not be constructed within the curtilage of the plot as it would create a small area of land between the fence and wall that would be inaccessible to the owners of the plot and so never maintained.
15. The Council says it suggested the developer could increase the height of the existing wall to 1.8 metres along its full length. However, Mr X rejected the proposal as he believed it would take too long to complete the project given a need to submit plans and source and approve the building materials. Mr X emphasises this was the developer’s suggestion all along and the Council simply adopted the developer’s position.
16. The developer told the case officer it would submit an application to vary the condition to remove the intended fence but the developer did not then submit an application.
17. The Council’s stage one complaint response assured Mr X that enforcement officers were considering the matter. It then did not consider his request for a stage two complaint investigation when he remained dissatisfied with the planning enforcement officer’s letter. The Council says this was due to an administrative error.
18. In its response to my draft decision the Council explained its decision on the planning enforcement complaint. The Council says:
• There was a breach of condition as the fence was not erected. But,
• The condition itself is not capable of compliance because the fence was set out in the wrong position in the approved plans. That is to say it is required to be constructed on the land owned by Mr X.
• The Council considered a reasonable compromise was to raise the height of the existing wall but this proved impossible to agree.
• The Council noted Mr X had already raised the height of the wall that directly faces the neighbouring plot. The Council believes the harm to Mr X’s privacy without the fence has been reduced by this action. It does not consider that is expedient to take enforcement action therefore as formal action would be excessive and would not stand up to scrutiny at an appeal.

Finding

19. The Council seemed to have identified a breach of planning control when the case officer discussed matters with Mr X. The breach being a failure to construct a fence. However, instead of formally setting out its position or writing to explain the process to Mr X, the case officer relied on telephone calls to Mr X. A telephone call is an acceptable form of communication but it does not record the Council’s formal position on the planning enforcement complaint. This explains the disconnection between the complaint responses and what had been happening in the background.
20. This failing is exacerbated by the Council’s handling of Mr X’s complaint. I note the Council’s failure to complete a stage two complaint. This was a poor service offered to Mr X.
21. I do not find fault with the planning enforcement decision itself. As enforcement action is not mandatory but discretionary it was for the Council to consider whether it was expedient to take action on the identified breach of planning control. Here, I note the Council provided reasons for its decision.
22. I note the outcome Mr X wants is construction of a fence. But given there is reasoned justification for the Council’s enforcement decision, this investigation cannot now achieve that outcome for Mr X.
23. The Council should reflect on its handling of Mr X’s complaint. Refresher training on complaints handling may be helpful.

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Final decision

24. There was fault by the Council with the Council’s handling of the planning enforcement matter as well as its handling of Mr X’s subsequent complaint. However, the complaint was closed because the Ombudsman cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman