Summary: We will not investigate this complaint about how the Council investigated possible breaches of planning control at a neighbouring property. This is because there is no evidence of fault in the way the Council dealt with this.

The complaint

1. Mrs X complains the Council has failed to take action to stop her neighbour from removing a hedge on the boundary between both properties and replacing this with a high fence. Mrs X says the work to remove the hedge and install the fence has made a retaining wall between the properties unsafe and at risk of collapse. She says this will impact on access to emergency vehicles and contractors who need to access a utilities facility via her property.

Back to top

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

Back to top

How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

6. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters. Under permitted development rights a householder may put up a boundary fence of up to 1 meter in height next to a public highway used by vehicles and up to 2 meters in height anywhere else.
7. The Council has visited the site and found that the fence put up by Mrs X’s neighbour is under 2 meters in height and is allowed under permitted development rules. Therefore, there is no evidence of fault by the Council.
8. The Council found that a small section of fence and a gate had been put up at the front of the property next to the public highway that was between 1 meter and 1.2 meters in height. The Council said “[the] fence appears to have replaced a fence of roughly the same height. It is not expedient to pursue this as little or no harm to the amenity has been created.” That is a decision the Council is entitled to reach and I cannot criticise it. Therefore there is no evidence of fault by the Council.
9. Issues regarding access or impact of any building work on structural integrity of neighbouring properties are civil matters between neighbouring landowners. There is no role for the Council in resolving these disputes and so there is no evidence of fault in the Council’s actions in responding to Mrs X’s concerns.
10. Mrs X says the Council can take action through building regulations legislation. The Council can take action where a structure is considered a danger to the public. Mrs X’s surveyor says the presence of the neighbour’s fence “may well have long term detrimental effect upon [the] the retaining wall”. The surveyor did not say that the wall was considered dangerous. Therefore there is no evidence of fault in the Council failing to take action regarding the stability of the wall.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because there is no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman