Summary: We will not investigate this complaint about the way the Council decided there is no change of use of a plot of land near the complainant’s home. And it is not expedient to act against the neighbour’s fence. We have not seen enough evidence of fault in the way the Council made the decisions to justify an investigation.

The complaint

1. Ms X complains the Council refuses to take enforcement action against her neighbour’s breach of planning control.

Back to top

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.

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

Back to top

How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Councils have legal powers to take enforcement action if they find planning rules have been breached. Government guidance says, as enforcement action is discretionary, councils should act proportionately in responding to suspected breaches. (National Planning Policy Framework (NPPF) paragraph 60)
6. As planning enforcement is discretionary, councils may decide to take informal action or not to act at all.
7. Ms X told the Council her neighbours have changed the use of a piece of private amenity land by taking it into their residential curtilage and putting up a high fence.

8. The Council advised Ms X:
• access rights are civil matters
• a technical breach may not result in enforcement action; and
• there would be a delay in investigating her report because of a work backlog.
9. After several months an Enforcement Officer visited the site. Having assessed the site they concluded the enclosure of the land was not a breach of planning control. They confirmed the fence was slightly higher than allowed through permitted development rights, but it was not expedient to take enforcement action against this.
10. The Ombudsman does not act as an appeal body for planning decisions. Instead, we consider if there was any fault with how the decision was made. The evidence I have seen shows the Council visited the site, assessed the breach and came to a decision. This is the process we expect to see. Therefore we cannot criticise the decision not to take enforcement action against the breach of planning control.

Back to top

Final decision

11. We will not investigate Ms X’s complaint because there is not enough evidence of fault in the way the Council decided there is no breach of planning control on the use of the land, and it is not expedient to have taken enforcement action against the fence.

Back to top

Investigator's decision on behalf of the Ombudsman