Summary: We will not investigate this complaint about the way the Council dealt with a breach of planning control and a retrospective planning application. We are unlikely to find fault in the Council’s actions.

The complaint

1. Mr X complains the Council should not have granted retrospective planning permission for his neighbour’s fence.

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

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My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation.
6. In this case, the Council looked into Mr X’s concerns and agreed the neighbour’s fence breached planning control. Officers invited the neighbour to submit a retrospective planning application.
7. The neighbour submitted a planning application to regularise the situation and the Council granted permission for the fence.
8. Mr X says the application should not have been validated and disputes the height of the fence. He also says the Council failed to properly consider his objections to the fence.
9. However, the Planning Officer visited the site and viewed the fence. They are satisfied the measurements provided by the applicant are correct and the difference in height on Mr X’s side is due to different ground levels.
10. The original plans showed permission was being sought for the fence surrounding the neighbour’s property. However this was later corrected to show permission was sought for the rear fence only.
11. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
12. A report should help show a council took proper account of key material planning considerations. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
13. From the information I have seen I am satisfied the Council properly considered the acceptability of the fence, including Mr X’s objections, before granting retrospective planning permission. The case officer’s report gives specific consideration to the impact of the fence on Mr X’s property and his objections. It also details the relevant national and policies and the reasons why the officer considers the fence acceptable.
14. Mr X disagrees with the decision to grant retrospective planning permission. But the Council was entitled to use its professional judgement to decide the application was acceptable.

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Final decision

15. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the Council’s actions to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman