Summary: We will not investigate Mr X’s complaint about the Council’s decision not to enforce against his neighbour’s fence and how it dealt with his complaint. There is not enough evidence of fault in the Council’s planning enforcement decision-making process to justify investigation. We do not investigate council complaint-handling where we are not investigating the core issue giving rise to the complaint. We cannot achieve the outcome Mr X wants.

The complaint

1. Mr X lives on the same road as another house located on a bend in that road. The house’s owner installed wooden fence panels on the corner. Mr X complains the Council:
1. incorrectly decided not to take planning enforcement action against the fence, despite officers deciding it is a breach of planning regulations;
2. failed to consider his complaint in an independent and unbiased way.
2. Mr X says the fence is incongruous and ugly. He says the fence restricts drivers’ sight when using the road and he is concerned this will cause traffic accidents. Mr X wants the Council to address the planning regulation breach and order his neighbour to remove the fence.

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, relevant online maps and images, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
7. Enforcement is a discretionary power held by local planning authorities, so there is no duty on them to enforce against all planning breaches they see. It is for those authorities’ officers to make their decisions on whether to use their powers. National government advises authorities to use enforcement as a last resort and only where there is significant harm caused by a planning breach.
8. In response to Mr X’s concerns, the Council considered the evidence he provided, including photographs of the fence, its length, height and location. Officers found the fence was a breach of planning regulations. However, they assessed its impacts and concluded the breach did not warrant enforcement action. Officers confirmed with Mr X that if the Council received a retrospective planning application to retain the fence, it is likely they would grant it permission. Officers determined the visual and highways planning impacts caused by the fence did not meet the expediency test for enforcement action in national government guidance, so decided not to enforce.
9. Officers gathered and assessed the relevant information and applied government guidance to inform their decision not to enforce. They took the view that it was not expedient to pursue the matter because the fence caused insufficient planning harm to warrant enforcement, a discretionary judgement they were entitled to make. There is not enough evidence of fault in the Council’s planning enforcement decision-making process here to warrant us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Mr X complains about the Council’s internal complaint process not being independent or unbiased. He says officers from the same department reconsidered the matter at stage two. It would not be fault for officers who know about the topic complained of to respond to or review cases. It is for councils to decide which officers deal with internal complaints. In any event, we do not investigate councils’ complaint-handling in isolation where we are not investigating the core issue giving 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.
11. Mr X wants the Council to enforce and order his neighbour to remove the fence. We cannot order the Council to take enforcement action, nor order officers to demand the fence’s owner to remove it. 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

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s planning enforcement decision-making process to warrant an investigation; and
• we do not investigate council complaint-handling where we are not investigating the core issue giving rise to the complaint; and
• we cannot achieve the outcome he seeks.

Back to top

Investigator's decision on behalf of the Ombudsman