Summary: Mr D complained the Council wrongly advised him that he was able to install a fence that did not comply with planning regulations. As a result, he now has to remove or reduce the fence, causing him distress and considerable expense. Mr D also complained the Council delayed responding to his complaint and failed to properly remedy the distress he has been caused. The Council has accepted there was fault and agreed to take the actions set out at the end of this statement to remedy the injustice caused.

The complaint

1. Mr D complained the Council wrongly advised him that he was able to install a fence that did not comply with planning regulations. As a result, the Council now requires him to remove the fence, causing him distress and considerable expense. Mr D also complained the Council delayed responding to his complaint and has failed to properly remedy the distress he has been caused.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I spoke to Mr D about his complaint and considered the information he and the Council sent and The Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Regulations”).
5. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not. Material considerations include local and national planning policies and regulations.
7. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
8. The Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Regulations”) grants permission for the installation of a fence, wall or “other means of enclosure” unless it is adjacent to a highway and the height exceeds one metre above ground level.
9. Councils can take enforcement action if they find planning rules have been breached. 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.

What happened

10. In February 2023, Mr D’s wife told the Council’s planning team they were planning to install a five-foot fence in front of their house next to the road. She sent some images showing what they were intending.
11. The Council emailed Mrs D that they were permitted to install the six-foot fence they desired “between you and your neighbour” and “to make the L-shape fence with the road, you are permitted to put up a fence no taller than 6.5 feet (2 metres)”.
12. Mr D purchased the fencing and paid for it to be installed. Mr D has sent evidence that the fencing cost £4,457.30 and the installation cost £1,570.
13. Following a report of a possible breach of planning rules, the Council visited the site and wrote to Mr D in December 2023. The letter said the height of the fence exceeded the maximum one metre height allowed for front boundaries under permitted development rights for householders. Planning permission was therefore required but this was unlikely to be granted because the fence was not in keeping with the character of the road. The Council therefore asked Mr D to remove the fence within 28 days or it would consider formal enforcement action.
14. Mr and Mrs D replied immediately to explain they had been advised by the Council that the fence would be allowed. In the following correspondence the Council set out the rules in the Regulations and it was suggested that the fence could be reduced in height. The Council agreed to defer any enforcement action.
15. Mr D contacted his MP who wrote to the Council on his behalf. Mr D wanted the Council to grant planning permission or to compensate him for the fence.
16. The Council replied to the MP. It accepted that the advice in the email was wrong and unclear. The Council noted that the only way to receive a formal answer to whether planning permission was needed was to apply for a Lawful Development Certificate but Mr D had not been advised of this. The Council declined to offer compensation as email advice was not binding.
17. Mr D made a formal complaint on 19 February 2024. The Council replied on 23 May. It accepted that the email had been unclear and offered a payment of £1,000 as compensation.
18. Mr D remained dissatisfied and asked for his complaint to be escalated. A final complaint response was issued on 8 July. The Council upheld his complaint. It found that whilst there was some ambiguity in the email, it was reasonable for Mr D to have considered that the advice was accurate and provided confirmation he could proceed in purchasing and installing the fence.
19. The Council offered to:
• Professionally survey the fence to determine if its height could be reduced.
• If that was not possible, arrange for removal of the fence and make good the ground at no cost to Mr D.
• Reimburse Mr D “for the costs to install the new fence that was removed. We will need to see proof of the costs to reimburse you with the correct amount.”
• Pay Mr D £200 to acknowledge the inconvenience caused.
20. The Council would also make service improvements to prevent similar emails being sent in the future.
21. Mr D remained dissatisfied and came to the Ombudsman. He said his preference was for planning permission to be granted for the fence. If that was not possible, he wanted the cost of the fence to be refunded. Mr D sent me evidence of an estimate of £3,320 for removing and replacing the fence. Mr D said the situation had caused him and his wife significant distress.

My findings

22. The Council upheld Mr D’s complaint and has accepted that the email it sent was unclear, which is fault. This caused Mr D to install a fence that was not in line with planning rules and the distress of receiving a letter requiring him to remove the fence. This is an injustice.
23. The Council delayed responding to Mr D’s complaint, which is fault and caused Mr D time and trouble in chasing for a response, which is an injustice.
24. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong.
25. I therefore consider that the Council’s offer in its 8 July complaint response, to remove the fence at no cost to Mr D and reimburse him, is appropriate and proportionate. But it was unclear whether the Council was offering to reimburse Mr D the full cost of the fence he purchased. I consider it should do so.
26. We will normally ask a council to make a symbolic payment to acknowledge any avoidable distress or time and trouble caused by fault. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that for time and trouble a symbolic, moderate amount is appropriate.
27. Mr D could make a planning application for the fence, but the Council has indicated this would be refused. The Ombudsman cannot make planning decisions as we are not a planning authority and I am unable to ask the Council to grant planning permission.

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Action

28. Within a month of my final decision, the Council has agreed to professionally survey the fence to determine if its height can be reduced.
29. If the fence can be reduced in height, the Council has agreed to fund the cost of this work.
30. If it is not possible to reduce the height, the Council has agreed to:
• reimburse Mr D the cost of the removal of the existing fence. This is £3,320.00.
• reimburse Mr D for the cost of its purchase and installation. This is £6,027.30.
31. Mr D will fund the installation of the new, compliant fence, as he would have done if there had been no fault.
32. The Council has also agreed to pay Mr D:
• £200 to remedy the time and trouble he was caused by the delay in responding to his complaint, and
• £200 to remedy the distress he was caused.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman