Summary: We will not investigate this complaint about the Council’s refusal to take enforcement action over a developer’s landscaping works which created a gap in a hedge and allowed public access to Miss X’s property. There is insufficient evidence of fault which would warrant investigation.

The complaint

1. Miss X complained about the Council’s refusal to resolve a recent problem caused by the developer of her estate when a 2-metre gap was made in a hedge on her boundary to comply with landscaping plans approved more than 8 years ago. She says people have started trespassing on her property on a path which has no obvious ending.

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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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(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 the complainant and the Council’s responses.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X says the developer of her estate has recently created a gap in the hedge near her property which has allowed the public to use her land as a short cut. She complained to the Council about the works but it told her it will not take enforcement action. It says the gap is shown on the landscaping plans which were approved more than 8 years ago and before she bought her home from the developer.
6. Local authority planning services have discretion to take enforcement action where there is a breach of planning approval which is causing serious harm to local public amenity. In this case the gap the developer has made is shown on the approved plans and Miss X bought the property in 2018. The Council cannot take enforcement action if there is no planning breach.
7. 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 an organisation 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 organisation made.

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Final decision

8. We will not investigate this complaint about the Council’s refusal to take enforcement action over a developer’s landscaping works which created a gap in a hedge and allowed public access to Miss X’s property. There is insufficient evidence of fault which would warrant investigation.

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Investigator's decision on behalf of the Ombudsman