Summary: We will not investigate this complaint about the Council’s decision not to taken enforcement action against a breach of planning control by the complainant’s neighbours. We have not seen sufficient evidence of fault in the Council’s actions.

The complaint

1. Miss X complains the Council refuses to act against breaches of planning control by her neighbours.

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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.

(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 Miss X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. 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.
6. 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.

7. 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.
8. Miss X told the Council her neighbour’s fence is more than two metres high. The Council confirmed the fence is about ten centimetres higher than that allowed by permitted development. However, it is satisfied it is not expedient to taken formal action to require the additional ten centimetres is removed or retrospective planning permission is obtained for the fence. Having considered Miss X’s report this is a decision it is entitled to make.
9. Miss X also told the Council another neighbour’s outbuilding breached planning control. The Council says the outbuilding has been in place for more than four years. Therefore it is immune from enforcement action.

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Final decision

10. We will not investigate Miss X’s complaint because the Council has considered her reports of breaches of planning control and explained that:
• It is not expedient to take action against her neighbour’s fence; and
• It cannot take action against the outbuilding as it is immune from enforcement action.
11. We have not seen enough evidence of fault in the Council’s actions as these are decisions the Council is entitled to make.

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Investigator's decision on behalf of the Ombudsman