Summary: We will not investigate Mr X’s complaint about the Council’s decisions not to enforce against his neighbour’s decking and fencing nor require them to apply for retrospective permission, how it investigated his concerns, or how it dealt with his complaint. There is not enough evidence of fault in the Council’s enforcement decision‑making which would have altered the outcome, including evidence of any discrimination, to warrant us investigating. We cannot achieve the outcome Mr X seeks from the complaint. We will not investigate council complaint-handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Mr X lives next door to a property whose owners installed a decking area along the boundary between the two gardens. He complains the Council:
1. incorrectly decided not to take enforcement action against his neighbour’s decking and fencing, nor requiring his neighbour to apply for retrospective planning permission;
2. delayed in investigating his reports, failed to inspect the site and did not seek his views or evidence when it did investigate;
3. discriminated against him because it enforced in similar circumstances at other properties;
4. failed to deal with his complaint in line with its policies.
2. Mr X says the raised deck and lower fence results in a harmful loss of privacy to his garden and kitchen/diner room and he has lost faith in the Council. He wants the Council to invite a retrospective planning application from the neighbour so affected neighbours, including him, can have their say on the application. He wants the resulting permission if granted to require the neighbour to install a 1.8m high fence along the full length of the decking.

Back to top

The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

5. I considered information from Mr X and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Planning authorities may take enforcement action where they identify or receive a report they decide is a planning control breach. They are required to investigate claimed breaches, but use of their enforcement powers is discretionary. It is for the authority to decide whether it is expedient to use its powers in each case.
7. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Effective enforcement is important to maintain 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.’ So councils acting as planning authorities have different options to respond to planning control breaches, from taking no formal action to issuing an Enforcement Notice. National guidance also advises councils to avoid pursuing a matter where it would only be to regularise a development which its officers consider is acceptable on its planning merits.
8. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. So we consider the process councils have followed when making their decision.
9. The Council delayed in responding to Mr X’s report about the deck and fence. When it did respond to Mr X’s report, the Council’s officers gathered before‑and‑after site photographs. They made a site visit but could not gain access. Officers took the view that the heights of the decking and fencing as installed do not cause such privacy impact on Mr X’s property to warrant them taking further action. Officers noted the boundary fence screening reduced to 150cm at the part of the decking furthest from Mr X’s house. They decided enforcement action is not expedient; requesting a planning application would only be to regularise the development they consider acceptable in planning terms, and national government advises councils to avoid this.
10. Officers gathered the relevant information to inform their discretionary decision not to enforce. The Council should have responded to Mr X’s reports sooner. But that delay did not affect the outcome of the Council’s enforcement decisions. There is not enough evidence of fault in the Council’s decision‑making process here to justify us investigating. We realise Mr X disagrees with the Council’s decision not to take further action, including seeking a retrospective planning application. But it is not fault for a council to properly make a decision with which someone disagrees.
11. We recognise Mr X considers the Council’s investigation was flawed because it used photographs from his neighbour only, and officers did not ask for his evidence. Officers determined they had sufficient evidence before them to make their decision here without gathering more. Making that determination was a professional judgement they were entitled to make when conducting their investigation.
12. Mr X says the Council discriminated against him because it required higher fences at two other properties in his road which were subject to planning applications in 2005 and 2014, but not in response to his concerns. Council planning officers must consider each enforcement issue on its own facts and merits, taking account of the specific circumstances to identify any planning harms. No two cases are the same, including the two applications Mr X refers to, and planning policies will change over time. That the Council made different decisions, at different properties, between 9 and 19 years ago, is not sufficient evidence of fault of any discrimination in its enforcement decision here to warrant investigation.
13. Mr X says the Council did not deal with his complaint in line with its policies. We do not investigate councils’ complaint-handling processes in isolation where we are not investigating the core matters which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
14. The outcome Mr X wants from his complaint is for the Council to invite a retrospective planning application from the neighbour and for any permission granted to require the installation of a 1.8m fence along all of the decking area. The Council has explained why it would not pursue a planning application for a development it considers acceptable in planning terms. We cannot order councils to seek an application or take any other enforcement action. That we cannot achieve the outcome Mr X seeks from his complaint is a further reason why we will not investigate.

Back to top

Final decision

15. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision‑making process which would have altered the outcome, including evidence of any discrimination, to warrant us investigating; and
• we cannot achieve the outcome he seeks from the complaint; and
• we will not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman