Summary: We will not investigate this complaint about planning enforcement because there is no evidence of fault.

The complaint

1. Ms X complains that a developer has built a fence too high and so close to her property that it affects her amenity.

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The Ombudsman’s role and powers

2. 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
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

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

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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. Ms X’s house overlooks a new development of houses. The developer built a 2.4m high fence near her house. Planning permission would be required for a fence higher than 1.8m in that situation.
6. Ms X complained to the Council and a site visit was carried out in April 2024 where the developer argued that the fence should remain that height to provide privacy for the new occupant on the other side of the fence.
7. The Planning Officer took into account the observations on the site visit together with photographs of the side before, and after, the erection of the fence. The Planning Officer concluded that a reduction in the height of the fence would lead to overlooking of parties on both sides of the fence. The Council decided not to take enforcement action.
8. Councils can take 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.
9. Planning 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 or use.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
11. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework September 2023, paragraph 59)
12. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
13. I am satisfied that the Council took all matters into account when deciding not to take enforcement action, including the effect upon Ms X’s amenity. I am satisfied that there is no evidence of fault by the Council.

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Final decision

14. We will not investigate Ms X’s complaint because there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman