Summary: We will not investigate this complaint about the Council’s decision not to act against breaches of planning control. The Council has inspected the site and decided it is not expedient to act. Having followed the correct decision-making process, this is a decision it is entitled to take.

The complaint

1. The complainant, I shall call Ms X, complains the Council has failed to take enforcement action against breaches of planning control at the site next to her home.

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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
• further investigation would not lead to a different outcome

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

3. We cannot question whether an organisation’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 Ms X and the Council
• the Ombudsman’s Assessment Code
• Ms X’s comments on the draft version of this decision

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My assessment

5. Ms X told the Council about breaches of planning control on the site next to her home.
6. The Council invested the reported breaches. It confirmed:
• The low wall was 1050mm instead of 1200mm as shown on the approved plans. It decided it was not expedient to enforce against this minor discrepancy.
• The developer confirmed the grassed garage roof will not be used as an amenity area despite the installation of a handrail.
• The fence is 1.8m and is permitted development.
• There was no breach of planning conditions on landscaping at the time of the inspection. However, the Council is working with the developer to achieve a practical solution that fulfils the objectives of the original proposals.
7. I understand Ms X is not satisfied with the Council’s response. She wants to know why the amenity of a disabled person is not relevant. In the case of planning enforcement, the Council is required to consider whether a breach of planning control affects the amenity of the public and whether enforcement action is a proportionate response to the breach. In this case it decided that it is not expedient to enforce against a breach of 150mm.
8. Ms X disputes the Council’s measurements, saying the wall is 250m,m lower than it should be. She also wants to know why the Council has not considered the impact this has on her as a disabled person. However, the Council conforms it has inspected the site and taken relevant measurements. I cannot say whether the wall is 150mm or 250mm lower than it should be. But the Council is required to investigate Ms X’s report of a breach of planning control.
9. In deciding whether it is expedient to initiate enforcement action, the Council should take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.
10. Having inspected the site and considered the issue, the Council is entitled to decide not to act against the height of the wall.
11. The Council considers the handrail on the garage roof is a minor breach as it is not on the approved plans. However, the intention of the planning condition is to prevent the garage roof from being used as an amenity space. There is no evidence of such use. If subsequent owners use the roof, then Ms X can report a breach of planning control to the Council for consideration. Having inspected the site and considered the issue, this is a decision it is entitled to take.
12. Ms X says the Council has measured the wrong fence. She says it should measure the fence in front of her bedroom. And says the developer created a raised bank before installing the fence so it is much higher than 1.8m on her side.
13. The Council’s website says the height of a fence must be measured from the ground level on which the fence is built. Having inspected the site, the Council says the fence has been measured from the correct point from the ground level on the development side. It is satisfied there is no breach of planning control. This is a decision it is entitled to take.
14. Finally, the Council confirms it is working with the developer to achieve landscaping which meets the required aims of screening. This matter is therefore ongoing, and it is premature to make a finding on whether the Council is at fault.

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Final decision

15. We will not investigate this complaint. This is because there is insufficient evidence of fault. And further investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman