Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control or a retrospective planning application. This is because we are unlikely to find fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with a breach of planning control and a retrospective planning application for a development near his home.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision and have considered his comments in response.

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What I found

4. When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. Material considerations relate to the use and development of the land in the public interest and includes matters such as the impact on neighbouring properties and the relevant planning policies. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.
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 or not complied with planning conditions. 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 affective 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. However, if the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.

What happened

6. Mr X contacted the Council as his neighbour had erected a large fence along the boundary with his home without planning permission. Mr X raised concerns about the safety of the fence and said it was damaging his home. The Council looked into Mr X’s concerns and invited a retrospective application to regularise the situation. The Council has since granted retrospective permission for the fence.
7. Mr X is unhappy with how the Council has dealt with the matter. He says planning permission should not have been granted as the fence is not in keeping with the area and encroaches on his land. Mr X says the fence has been poorly constructed and is unsafe. He also says the fence is not in line with the approved plans and the planning conditions for the retrospective planning permission have not been complied with. Mr X says the application should have been determined by the planning committee.

Assessment

8. I will not investigate this complaint about how the Council has dealt with a breach of planning control or a retrospective planning application. This is because I am unlikely to find fault by the Council.
9. Mr X is unhappy with the Council’s decision to grant retrospective planning permission for the fence. However, I am satisfied the Council properly considered the acceptability of the development before granting planning permission. The case officer addressed the impact on neighbouring properties and the surrounding area but decided there would not be a harmful impact.
10. I understand Mr X disagrees and says the fence encroaches on his land and is damaging his property. He also says the application should have been determined by the Council’s planning committee. But land ownership issues and property damage are not material planning considerations and will be private civil matters between Mr X and his neighbour. I cannot know why the Council did not receive some of the objections to the application and had these been received the application may have been referred to the planning committee. However, I cannot say Mr X has suffered any significant injustice in this regard. His concerns about the application were considered by the case officer before it was decided the development was acceptable.
11. Mr X has also raised concerns about the safety of the fence. However, the Council’s building control officers looked into Mr X’s concerns and decided the fence was not dangerous.
12. Mr X has also said the fence is not in line with the approved plans and the planning conditions have not been complied with.
13. The Council does not need to take enforcement action just because there has been a breach of planning control and formal action is usually only used as a last resort. In this case, the Council did look into Mr X’s concerns about a possible breach of planning control. An officer visited the site and decided the fence was not significantly different from the plans. It also decided it would not be expedient or proportionate to take formal action regarding the planning condition which required Mr X’s neighbour to apply hedge wrap to the fence. The Council was entitled to use its professional judgment to decide formal enforcement action was not necessary and the Ombudsman cannot question this decision unless it was tainted by fault.

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Final decision

14. I will not investigate this complaint. This is because I am unlikely to find fault by the Council.

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Investigator's decision on behalf of the Ombudsman