Summary: We will not investigate this complaint about the Council deciding not to take enforcement action in relation to the boundary wall built by a developer for the complainant’s home. This is because there is not enough evidence of fault in the way the Council made its decisions, and it has apologised for associated errors in its communications with the complainant.

The complaint

1. Mr X complains the Council has decided not to take enforcement action against the developer who built his home, for failing to build the boundary wall high enough or to an acceptable standard. Mr X says this is causing him significant anxiety about the safety and privacy of his property.

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The Ombudsman’s role and powers

2. We can 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 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 are satisfied with the action a council has already taken.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

3. We can 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)

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How I considered this complaint

4. I considered:
• information provided by Mr X, which included the Council’s complaint responses.
• information about the planning permission for Mr X’s home/boundary, on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

5. I appreciate Mr X is unhappy the Council has decided not to take enforcement action in relation to the height of his boundary wall or the quality of its construction.
6. But the Ombudsman is not an appeal body. Rather, our role is to look at whether there was fault in the way the Council made its decisions. For example, we look at whether it took account of relevant information and/or made a decision in line with any relevant policy or law. If we decide there was no fault in the decision-making process, we cannot question whether the Council should have reached a particular decision or say it should have reached a different outcome.
7. I find there is not enough evidence of fault, in the way the Council reached its decision not to take enforcement action, to justify starting an investigation. In reaching this view I am mindful that:

• Councils can take planning 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. Enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development.
• A planning enforcement officer visited the site.
• The Council has explained to Mr X the reasons why it does not consider it expedient to pursue enforcement action, namely:

• The wall is not significantly different in height to what was approved, and the sloping land means parts of it are built to the correct height.
• If a planning enforcement notice was issued, it is likely an appeal against the notice would be upheld. A Planning Inspector considers such appeals on behalf of the Secretary of State.
• The Council would be likely to grant planning permission if a retrospective planning application was submitted to retain the wall.

• A building control officer also visited the site, and concluded the construction of the wall did not present an imminent danger to the public. He also explained that boundary walls are not covered by the Building Regulations unless they form a structural part of a dwelling.
• Mr X may well disagree with the Council’s decisions, but they are made by officers exercising their professional judgement and their merits are not open to review by the Ombudsman.

8. During the complaint process, the Council apologised for errors in its communications with Mr X about the case, and in managing his expectations. These apologies are a satisfactory way to address that part of the complaint, so the Ombudsman will not pursue it further.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council decided not to take enforcement action, and its apology for communication errors is an appropriate way to address that part of the complaint.

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Investigator's decision on behalf of the Ombudsman