Summary: Mr X complained the Council failed to take enforcement action over his neighbour’s fence, which was erected without planning permission and blocks light to Mr X’s property. Mr X said he suffered stress and anxiety. We did not find fault in the Council’s decision-making.

The complaint

1. Mr X complained the Council failed to take enforcement action over his neighbour’s fence, which was erected without planning permission and blocks light to his property.
2. Mr X said the Council made no attempt to see the fence or investigate. He also said the Council failed to keep records of his contact with officers.
3. Mr X said he suffered stress and anxiety because of the Council’s actions.

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The Ombudsman’s role and powers

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. 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)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning permission

9. You do not need planning permission to erect a fence if it meets the following conditions:
• It is next to a highway and does not exceed one metre in height.
• It does not exceed two metres in height anywhere else.
• No part of the site is a listed building, within the curtilage of a listed building, or forms a boundary with a listed building.
• The right to erect fences has not been removed by a direction or planning condition.
10. If any of these conditions are not met, you will need to apply for planning permission.

Planning enforcement

11. 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.
12. 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.
13. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
14. 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 60)

The Council’s Local Enforcement Plan (Planning Enforcement) (May 2021)

15. The Council will triage planning complaints to ensure they are planning matters and as much information as possible has been submitted. Once accepted as valid, the Council will prioritise the complaint according to the seriousness of the alleged breach. It does this using the information and photographs provided by the complainant, and assessment of any planning history.
16. Priority One is where irreversible harm is likely if the Council does not act immediately. The Council aims to do a site visit within one working day and start action as soon as possible.
17. Priority Two is where there is significant public concern or potential for significant harm to residential amenity. The Council aims to do a site visit within ten working days and act to resolve the matter within sixteen weeks.
18. Priority Three is for small scale infringements which do not result in significant, immediate, or irreversible harm. The Council aims to do a site visit within thirty working days and act to resolve the matter within sixteen weeks.
19. The Council will carry out site visits, in line with the priority of the alleged breach, to obtain factual information and take photographs.

What happened

20. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
21. Mr X reported a planning breach to the Council on 12 April 2024. He said his neighbour erected a part concrete, part wooden fence at the rear of their home that was 7ft to 8ft tall. He said this blocked his light. Mr X attached photographs of the fence in support of his complaint. Mr X also said his neighbour laid a concrete drive with no drains, resulting in rain water running to the front of Mr X’s house.
22. A planning enforcement officer emailed Mr X on 15 April 2024. They said they tried to telephone him but without success. They asked him to call back on the number provided.
23. Mr X complained to the Council on 28 May 2024. He asked what was happening with his enforcement complaint, as it had been seven weeks without an update.
24. The Council responded on 4 June 2024. It apologised Mr X was still waiting for an update on his planning breach complaint. It said a member of the enforcement team tried to contact him on 15 April, but it appeared the contact details he supplied were incorrect. The Council said it would ask the enforcement team to reach out to Mr X again by email.
25. Mr X was dissatisfied with the Council’s response and asked for a stage two review. He also provided photographs of his neighbour’s new driveway.
26. The Council sent its stage two complaint response on 11 July 2024. It said it could not identify the officer Mr X said he spoke to. It said it was not its intention to delay his enforcement complaint, it was dealing with an extremely high volume of cases, and it was important it had as much information as possible to identify a possible breach and to eliminate cases not needing enforcement action. It said it needs discussion and photographs as part of that process. It confirmed its position on the fence remained the same. It thanked Mr X for the photographs he sent of his neighbour’s driveway. It said the drive was constructed using block paving, which does not need planning permission.

My investigation

27. Mr X told us his neighbour erected fencing on his boundary which is more than two metres high, without planning permission. He also said his neighbour constructed a driveway with no drainage. Again, without permission.
28. Mr X said his neighbour’s fence is on his land without permission, and is higher than regulations allow. He therefore cannot understand why the Council will not take enforcement action. Mr X sent photographs, but questioned how the planning officer made an assessment based on a few photographs, without visiting to check the fence in person.
29. Mr X also said the Council did not record any of his telephone calls or conversations with officers.
30. The Council told me it carried out a desktop review of the complaint based on the photographs Mr X provided. It said this is standard practice for all complaints as it can satisfy itself whether there is a breach of planning control sufficiently enough from photographic evidence and its triage system. The Council said it did not create a case file, as it took no action after assessment of the photographs.
31. I asked the Council for a copy of its decision letter to Mr X in response to his enforcement complaint. The Council told me it did not send one, as Mr X made a formal complaint after an officer emailed him saying his contact details were incorrect.
32. The Council told me its stage one complaint response to Mr X stated:
33. ‘the team would unfortunately not be able to investigate your fencing concerns, since the photographs provided show it as being constructed of standard feather board and to a standard height - which would not breach planning control.’ 
34. The Council also told me if the fencing was slightly above standard feather board height, and thus requiring planning permission, it does not consider it would be expedient to pursue enforcement action.
35. The planning enforcement officer said they did not recall any further conversation with Mr X after their email asking him to make contact. They had not received a response from Mr X to their email and were unaware of any returned calls to discuss the matter further.

Analysis

36. 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 the Council 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 someone disagrees with the decision the Council made.
37. In making its decision, the Council took account of the relevant planning enforcement guidance, its own planning enforcement plan, and information from Mr X. The Council followed the appropriate procedures when making its decision and I cannot therefore criticise it.
38. The fence Mr X complained about borders the rear garden of his and the neighbouring property. Mr X has not provided measurements of the height of the fence, but the Council is satisfied it looks of standard construction and height. There is no evidence to suggest Mr X’s home, or his neighbour’s, is a listed building. The Council therefore does not consider the fence breaches planning control. And, if it did, the Council does not consider the impact is significant enough to take enforcement action over. That was a professional judgment made by a planning officer which the Ombudsman cannot question. Enforcement action is discretionary. After considering the circumstances, the Council was entitled to decide to take no further action.
39. When Mr X put in his enforcement complaint, he sent the Council photographs of the fence as supporting evidence of the alleged planning breach. The Council’s local planning enforcement plan says it will consider information and photographs from the complainant to decide whether to accept the complaint. If it does accept the complaint, the Council will prioritise it and visit the site to assess the alleged breach. Based on Mr X’s photographs, the planning enforcement officer who assessed his complaint decided they could reach a decision without needing a site visit.
40. I appreciate this was frustrating for Mr X, as he considered the Council did not investigate properly. However, councils are not under a duty to conduct site visits as part of the planning process. In addition, planning officers are entitled to their professional judgement on whether there is a breach of planning control, and what the impact is. I have not seen evidence of fault in the Council’s decision-making.
41. As above, the Council told me it explained the reasons for its decision in its stage one complaint response. I have checked the document we have from the Council titled ‘Stage 1 response’ and it does not mention anything about an assessment of the photographs or fence. It appears there must have been another response the Council sent to Mr X which it either no longer has, or has not provided me with.
42. Mr X said the Council did not keep a record of its communications with him. I found a planning officer emailed Mr X after they could not contact him by telephone. They asked Mr X to call back. The officer said they could not recall Mr X responding to their email or returning their call.
43. It looks like poor practice for the Council to have no decision or outcome letter, and no case file confirming actions taken or officer views. Without making enquiries and asking the Council specific questions, I did not know the Council’s reasoning for not taking enforcement action, or what evidence it considered. However, it is clear from Mr X’s complaint to us that he knew the reasons for the Council’s decision, so it must have been communicated to him. I therefore do not consider there is any significant fault or injustice in this regard.
44. Mr X also complained the fence is on his land. If that is the case, then it would be a civil matter and is not something the Council can take enforcement action over.

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Final Decision

45. I did not find fault in the Council’s decision-making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman