Summary: We found no fault on Mr C’s complaint about the Council failing to ensure compliance with planning conditions, which included an acoustic fence, and it failing to take enforcement action for a fence attached to his garage, both of which affected his amenities. The Council properly considered whether it need to take enforcement action. It failed to follow procedure when it dealt with his formal complaint. The agreed action remedies the injustice caused.

The complaint

1. Mr C complains about the Council’s failure to:
1. ensure developers complied with planning conditions requiring the erection of an acoustic fence near the boundary of his property which would also create a buffer zone between it and the existing 2-metre non-acoustic fence erected; and
2. take enforcement action against the neighbouring site owner who attached gates and a fence to the side of his garage as these should have been attached to the acoustic fence.
2. As a result, this caused him a great deal of stress and anxiety as he was left only with a non-acoustic fence which is in poor condition, does not provide noise reduction, and was not built to required standards. In addition, he lost access to his rear boundary fence from the side of his garage to carry out maintenance.

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The Ombudsman’s role and powers

3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

7. Mr C claimed the housing developer made several claims before and after he bought his house which included: the creation of a buffer zone between his property and the neighbouring site to the rear; there would be an acoustic fence 2.4 metres in height marking the extent of the buffer zone; the neighbouring site would remove the gate and fencing attached to his garage wall.
8. Any complaint Mr C may have about the claims made by the housing developer were not investigated. This was because I can only investigate the Council. Mr C may wish to take legal advice about possible legal claims he might have against the housing developer if he felt they were misleading and/or negligent.
9. Nor have I investigated any complaint about who has responsibility for the maintenance of this fence. This is not within our jurisdiction because this was a legal issue for the courts to decide, not the Ombudsman.
10. I have seen no good reason why we should exercise discretion to investigate these complaints.

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How I considered this complaint

11. I considered all the information Mr C sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr C and the Council. I considered their responses.

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What I found

12. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there was a breach of planning control.
13. 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.
14. 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.
15. 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)

Planning Enforcement Options

16. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices: to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices: where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices: to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices: to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions: by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

17. 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.

Planning conditions

18. Councils often apply planning conditions to a grant of planning permission to improve the quality of planning applications by mitigating any adverse effects. Planning conditions limit and control the way developers must implement planning permission.
19. To discharge a planning condition, an applicant must give a council information about how they intend to meet the condition. An applicant can apply to have all or part of a condition approved.

What happened

20. Mr C’s property was newly built in 2016 and was a ‘show’ home used by the housing developer. The neighbouring site non-residential building (the site) was constructed in 2018.
21. There were two developers involved with the construction and planning consents: one for the housing and the other for the site. The Council rented the site from the land owner.
22. Mr C’s house had a 2-metre fence (fence 1) to its rear between it and the site. Fence 1 marked the boundary of his property. He complained the site used fence 1 to mark its boundary. He argued fence 1 was not in good condition and failed to meet the specifications required under planning consent.
23. The site had also attached a fence to the corner of his garage which meant he could not access the side of fence 1 facing away from his house for maintenance.
24. In addition to fence 1, the housing developer told him there would be a buffer zone between his property and the site to its rear. This would allow him to maintain his own two-metre fence by accessing it from the side of his garage. At the other end of the buffer zone, he was told there would be a 2.4 metre acoustic fence (fence 2).
25. He decided to buy the house in 2020 even though fence 2 was not in place, there was no buffer zone, and the site’s fence was attached to his garage.
26. Mr C was unhappy with these omissions so in October 2023, complained to the Council about them. Hearing nothing, he chased it for a response in January 2024, and was told it had not been logged but now would be.
27. He chased it in March and was again told it had not been logged as a complaint. He had also asked the Council’s planning enforcement team to investigate and act against the site for breaching planning consent.
28. When it replied to his complaint, the Council noted the volume of applications over several years received for the housing development and the site, with some conditions discharged more than once. This led to confusion and would make any formal enforcement action difficult.

Fence 1: the rear garden fence

29. Mr C claimed the fence erected at the rear of his house did not comply with planning conditions attached to the house he bought and approved specifications. He said the Council contributed half the cost of erecting this fence. He argued it was now in poor condition and leaned. Nor was it an acoustic fence so there was a breach of planning conditions to mitigate noise from the site.
30. He took legal advice and was told the fence was the joint responsibility of Mr C and the site, which the Council disputed stating he had sole responsibility for it.
31. The Council confirmed:

• the planning conditions for this fence were discharged four years before Mr C bought his house. The approved fence was a two-metre-high close board acoustic fence which the housing developer had set out the specification for.
• there was a difference between this, and the site plans, which showed a 2.4 metre fence which the Council had discharged the condition for three years before Mr C bought his house.
• the gaps in fence 1 used batons as required for fence 2.
• the fence did not meet the housing developer’s specifications.
• the housing developer’s approach to the boundary could have been explored in 2018 when a noise report was submitted.
• the site got a noise specialist to assess whether fence 1 provided enough noise mitigation. There were two reports, one in May 2024, and the other in June. Having considered them, the Council’s environmental health team was not satisfied there was a problem with noise from the site. It also meant it would take no enforcement action nor seek a retrospective application to regularise fence 1.

32. The Council’s enforcement team began its investigation in October 2023. The records showed officers visited Mr C in November and said fence 1 seemed to have been built according to planning conditions. Mr C had specifications for fence 1 which appeared agreed under planning consent.
33. The housing developer told him the neighbouring site changed the layout of the land near to his home without consent and they needed to address this first before resolving the fence.
34. In January 2024, officers discussed the issues with the land owner and the housing developer. The land owner claimed the housing developer should have carried out the work correctly. All relevant parties were invited to a meeting which took place the following month, although no minutes were taken. The land owner did not attend. During it, the housing developer confirmed it did not build it to the higher specifications set out within the neighbouring site building phase when they erected fence 1.
35. The Council confirmed the fence did not meet the developer’s specifications. For example, it did not have three or four horizontal rails and nor did the fence posts match the approved specifications. It accepted there may be a technical breach of planning consent. The fence was erected before the neighbouring site building was built and the Council believed this was because the housing developer wanted to complete the housing development.
36. Noise monitoring was carried out in June on the site next to his garden and also at the end of his road. Mr C refused to allow monitoring equipment in his property. When it considered the noise levels recorded, the Council concluded they did not amount to a statutory nuisance as noise levels were below those set by the World Health Organisation. It did not consider it appropriate to take enforcement action given the results.
37. The fence itself was inspected and in July, a copy of a report was prepared which found it was in a good state of repair with no cracks or gaps. This was for the whole stretch of the fencing. Mr C pointed out this inspection was done by an acoustic firm, not a surveyor. The Council accepted the section of fencing behind Mr C’s house was not in good condition and leaned.
38. The land owner considered, while the correct specification was not followed for the erection of fence 1, it had no responsibility for it. Mr C does not agree.
39. The Council wrote to the housing developer about repairing the fence due to its condition. After contact with the developer, the Council was told this had been subject to extensive reviews and was a private matter for Mr C.
40. The Council decided, after discussions with the housing developer, that while there was a technical breach of planning consent, formal enforcement action was not justified. It explained to Mr C there were several fence specifications approved over the years when discharging conditions. There were discrepancies within the approved details.

My findings

41. I make the following findings on this complaint:
1. The fence was in place when Mr C bought the house. The Council concluded it was likely erected after the housing developer built it so it could sell his house, along with the others, it constructed.
2. There were at least eight different planning applications for the housing site and neighbouring non-residential site.
3. The Council investigated Mr C’s reports about the fence and decided not to take enforcement action. In reaching this decision, the Council took account of the various planning applications received both from the housing developer and from the site. These were not always consistent about the construction of the fence. It also received and approved various applications for the discharge of conditions which included this fence.
4. I am satisfied the Council considered whether it was appropriate to take enforcement action. In doing so, it noted the complicated history of the sites in terms of planning applications received including those for the discharge of relevant conditions about the fence. Taking enforcement action against the housing developer, for example, would have been difficult with no guarantee of success for the Council. This was because there were conflicting approved specifications as applications had been received from both the housing developer and the site.
5. In addition, any formal action could be defended as the Council had discharged the relevant condition several times on different applications made by the site and the housing developer.
6. I am also satisfied the Council considered whether noise was a problem from the site and concluded after monitoring it was not.
7. The applicant needed to give the Council information/details about how it intended to discharge the planning condition. There was clearly a problem with the lack of co-ordination between the housing developer and the site about applying for the discharge of conditions, as well as the Council recognising it had discharged some conditions several times. Despite this, I am not satisfied Mr C was caused an injustice, even if there had been fault by the Council when it discharged conditions. This was because it ensured noise monitoring was done to see whether there was any impact on amenities from noise, for example. It found there was no adverse impact despite the fence not meeting the approved specifications.
8. The Council tried to get the housing developer to consider taking actions about the physical condition of the fence. The housing developer refused to take action and said it was a private matter. Its refusal now means Mr C may need to consider private law options.

Fence 2: The acoustic fence

42. Mr C argued the site breached planning consent because it did not erect this fence as required. The fence would have been further inside the site and created an area of land between it and fence 1. He wanted the Council to take enforcement action against it for not erecting it.
43. The Council confirmed there was a breach of planning control as the approved plans for the site showed a 2.4-metre-high acoustic fence. This was not done. It told Mr C why it would not take enforcement action.
44. The Council accepted there was a lack of clarity in some of the applications for the discharge of conditions. For example, there was a lack of clarity about whether there was a separate fence or not. It also accepted this was not explored as fully as it needed to have been, and it would have been helpful for the developers’ approach to the boundary to have been clarified at an earlier stage.
45. From discussions, it was clear in 2015 the developers were against creating a buffer zone area between the school and housing development. They wanted only one fence, the cost of which would be shared. This was fence 1.
46. The Council found no references to the creation of a buffer zone to the rear of Mr C’s house in any application. It noted the housing developer considered land beyond fence 1 was within its control and works were done on it without its consent. The Council found no evidence to support its view as the land beyond was part of the site.
47. There was, therefore, a breach of planning consent about fence 2. There was poor communication between the developers and the planning team which should have sought clarification. Had the Council been asked about a second fence, it would have taken the view that effectively creating a buffer zone between fence 1 and fence 2 was not a good idea.
48. As noted, due to the noise monitoring reports, and no noise complaints that year, the Council decided not to pursue planning enforcement action. Nor would it ask for a planning application just to regularise the current situation. This was because there was nothing to show the absence of fence 2 affected Mr C’s amenities. Fence 1 provided a secure boundary and an acceptable level of noise mitigation.

My findings

49. The Council accepted there was a breach of planning consent as fence 2 was not erected as required.
50. I am satisfied the Council properly considered whether it should take enforcement action for the failure to erect fence 2. It decided not to do so. In reaching this conclusion the Council again took account of the history of the site in terms of planning applications, the lack of clarity, discussions in 2015 which were against fence 2, noise monitoring results, and the fact it would not support an application for such a fence as it would create an area of land between fence 1 and 2.
51. As noted, the applicant needed to give the Council information/details about how it intended to discharge the planning condition and there was a problem with the lack of co-ordination between several parties with applications to discharge conditions. The Council also accepted its planning team could have explored this early on about separate fencing. Again, the Council recognised it had discharged some conditions several times.
52. I am not satisfied Mr C was caused an injustice, even if there had been fault by the Council when it discharged conditions. This was because it ensured noise monitoring was done to see whether there was any impact on amenities from noise, for example, from the site. It found there was no adverse impact. This means the erection of fence 2 was unlikely to have made a significant improvement on his amenities.

Attaching fencing to his garage

53. Mr C was unhappy the site attached fencing and gates to the wall of his garage near its main entrance. He believed these should have been attached to fence 2 had it been erected. Mr C complained the fence and railings prevented him from accessing the rear fence.
54. As already noted, the fencing was attached to his garage before he bought his house which meant he was aware of it back in 2020. While he could not view it because of COVID-19 restrictions and his own health vulnerabilities, he knew it was attached from previous viewings. This was an issue he could have asked the seller, or his own solicitor, for evidence about before completing the purchase.
55. In its stage 1 complaint response of April 2024, the Council confirmed it was satisfied the attached fence, and railings, did not encroach on his property. As the attached fencing did not result in any material planning harm, the Council decided not to investigate his reports further. It suggested he contact the housing developer about it. The land behind Mr C’s fence was land forming part of the site leased to the Council by the land owner.

My findings

56. I found no fault on this complaint. Mr C was aware of this attachment at the time he bought the house. Any claims made by the housing developer were not claims made by the Council. The Council considered his points but decided there was no material planning harm to the public caused by the attachment. As such, it would not take enforcement action.
57. I am satisfied the Council properly considered the need to take enforcement action. It was entitled to reach the decision not to take it.

Complaints procedure

58. Mr C was unhappy with the way the Council responded to his formal complaint. This was because it failed to log his initial, or later complaint, which caused an overall delay to it deciding it.
59. The Council’s complaint process stated it has the following stages:

• Receiving a complaint: a complaint is considered to start the day it is received. The complainant is sent a receipt, a leaflet outlining the complaint process, and an equal opportunities questionnaire.

The Council confirmed Mr C first made a complaint in October 2023, but this was not registered due to ongoing discussions he was having with the Legal team. Once these ended, his complaint would be registered. In January 2024, he was told as these had ended, it would now register his complaint.

The Council accepted there was a failure to register his complaint and apologised for the delay.

The evidence showed the Council received his complaint on 11 March 2024.

• Stage 1: the complaint should be responded to within 15 working days, or an explanation is given with a target date if it is likely to take longer.

The Council sent him its Stage 1 response on 19 April 2024. He was told about Stage 2 but instead he asked for it to go to Stage 3.

• Stage 2: a senior officer reviews the complaint and tries to resolve it within 15 working days or again longer with a new target date.
• Stage 3: referral to Appeals and Complaints Committee. The Council reviewed his request for his complaint to go to Stage 3 but refused as it considered his complaint had been dealt with correctly and further consideration was unlikely to result in a different outcome.

My findings

60. I found fault on this complaint because:
1. There was no evidence of the Council telling Mr C, when it received his initial complaint in October 2023, that it would not be registered at that point due to ongoing discussions with the Legal team. Nor was there any explanation about why these discussions would prevent registration.
2. Although the Council said the ongoing discussions with the Legal team meant it could not register his complaint until they were over, the Council’s complaints policy did not list this as an exemption from the complaints procedure.
3. The Council accepted and apologised for failing to register his complaint after saying it would do so in January 2024.
4. There was a delay between January to April when the Council sent him its Stage 1 response.
5. I am satisfied the identified fault caused Mr C an injustice. This was because he had the frustration of having to chase the Council up about it and lost the opportunity of having it dealt with sooner.

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Agreed action

61. I considered our guidance on remedies.
62. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr C a written apology for failing to: tell him it could not register his complaint in October 2023 when he complained; tell him why it could not register his complaint; set out in its complaints procedure that ongoing legal discussions were an exemption; promptly deal with his complaint when discovering it had failed to register and act on it in early 2024.
2. Pay £100 to Mr C for the injustice the fault caused.
3. Ensure all relevant officers are aware of the need, when applicable, to confirm in writing to a complainant that i) it cannot register a complaint and ii) the reason for that decision.
4. Review the complaints procedure and amend it to reflect ongoing legal discussions as an exemption to registering a complaint.
5. Review why his complaint was not dealt with promptly from January 2024.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I found the following on Mr C’s complaint against the Council:

• Complaint a): no fault;
• Complaint b): no fault: and
• Complaint procedure: fault and injustice remedied by recommended action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman