Summary: We will not investigate this complaint about enforcement against a neighbour’s fence because there is no evidence of fault by the Council.

The complaint

1. Mr X complains that a neighbour has erected a fence without planning permission and this affects his amenity.

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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, 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.

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

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How I considered this complaint

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

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My assessment

5. Mr X says that his neighbour has erected a fence at the back of his house and this has limited his access to a communal area. He says that he believed he had such access when he bought his property.
6. The Council says it has investigated the matter and asked the neighbour to submit a planning application to authorise the fence but, so far, no planning application has been forthcoming.
7. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
8. The Government advises that a Council should first decide whether a development (subject of an enforcement complaint), would be granted planning permission as it stands, before taking enforcement action. This can be done by the request for a submission of planning application to retrospectively authorise the development. In this case, the Council has done so but still awaits a planning application. If no planning application is submitted the Council will have to decide whether or not to enforce against the fence. This is a discretionary decision and it is not for the Ombudsman to question the merits of such a decision, properly reached.
9. The Council says that any private rights established when Mr X bought the house are a private matter and not for the Council.
10. I consider that it would be reasonable to give the Council a little more time to decide whether enforcement action should be taken in the absence of a retrospective planning application. Mr X could therefore make a further complaint to this office in two months if no action has been taken or planning application submitted.

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Investigator's decision on behalf of the Ombudsman