Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because we are unlikely to find fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision not to take enforcement action in relation to a fence erected without planning permission. Mr X says the fence is unsuitable and should be replaced with a fence that protects visual amenity and conservation.

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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.

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

3. 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
6. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
7. The Council granted planning permission for a residential development in the area where Mr X lives. The permission was subject to conditions, including a requirement to submit a habitat management plan to the Council for approval. A few years later, the developer applied to vary the planning conditions and remove the requirement for a management plan for part of the site. The Council refused the application and the developer appealed to the Planning Inspectorate. The Inspector partly allowed the appeal so the condition could be varied.
8. Following the appeal, the developer submitted a management plan to the Council which was approved. A fence was also erected at the development site.
9. Mr X says the fence is unacceptable and should be replaced with a fence that protects visual amenity and conservation. He has also raised concerns about the approved management plan.
10. The Council agreed the developer was not complying with the management plan. It issued a breach of condition notice which it says has now been complied with. The Council also agreed the fence needed planning permission. However, it decided it would not be expedient to take enforcement action. It said the fence had been constructed in a way it was likely to secure planning permission. It also said the fence was included in the approved management plan and meets the necessary requirements.
11. I understand Mr X disagrees with the Council’s decision not to take formal action in relation to the fence. But the Council was entitled to use its professional judgement in this regard. Councils also do not need to take formal action just because there has been a breach of planning control. As the Council properly considered if it was necessary to take enforcement action, it is unlikely I could find fault.

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Final decision

12. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council.

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Investigator's decision on behalf of the Ombudsman