Summary: We will not investigate this complaint about the way the Council considered a report of a breach of planning control and retrospective planning application. We have not seen enough evidence of fault to justify an investigation.

The complaint

1. Mrs X complains about the way the Council dealt with a report of a breach of planning control and a subsequent retrospective planning application.

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

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My assessment

5. Mrs X complains about the way the Council investigated a breach of planning control at her neighbour’s property. Her neighbour had erected a fence around their property which is above the height permitted without planning permission.
6. The Council investigated the report and established the fence breached planning control. It invited the neighbour to submit a retrospective planning application to regularise the breach.
7. Mrs X says the Council told the neighbour to submit the application within 28 days. They did not do so. The neighbour submitted the application about four months later.
8. 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.
9. 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.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
11. The Council invited a retrospective planning application and one was received, albeit after a relatively short delay. I understand Mrs X may have been frustrated by the delay. However, this is due to the action of the neighbour, rather than the Council.
12. The Council publicised the application. It received objections from Mrs X including photos showing the fence from her property. It also received objections from the Town Council.
13. The Council also consulted its tree officer and the local highway authority. It did not receive any objections from either party.
14. The planning officer visited the site and prepared a report on the fence.
15. The report includes a summary of the objections received. It also details why the Planning Officer considers the fencing is acceptable. The Officer noted there is limited harm to Mrs X’s amenity, however they did not consider this sufficient to justify refusing the application. A Senior Officer agreed with the Planning Officer’s assessment and the Council granted planning permission for the fence under its scheme of delegation.
16. I understand Mrs X disagrees with the Council’s decision. However, it is not our role to act as a point of appeal against decisions councils make with which complainants are unhappy. We cannot question council decisions if they have followed the right steps and considered the relevant evidence and information.
17. In this case the Council acknowledged that the breaches had occurred and invited a retrospective planning application.
18. It publicised the subsequent application, and the information I have seen shows the Council considered the objections received. The Planning Officer visited the site and took photos. Mrs X also supplied photos so it is evident the Council was aware of what the planning application was for. Having considered the information received, and relevant national and local planning policy, the Council decided to grant planning permission. This is a decision it is entitled to make.
19. Mrs X says the Highways Authority’s decision not to object was based on outdated information. And that the tree officer did not justify their reasons for not objecting. However, the Council, as local planning authority, is entitled to reply on the responses from the statutory consultees.

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Final decision

20. We will not investigate Mrs X’s complaint because we have not seen enough evidence of fault in the way the Council considered the report of a breach of planning control and the neighbour’s planning application.

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Investigator's decision on behalf of the Ombudsman