Summary: Mr X complained the Council failed to take enforcement action against a business who painted the perimeter fence of their business a different colour to that granted through the planning permission. Mr X says the colour of the fence and building impacts his view and amenity. The Ombudsman does not find fault with the Council’s decision not to take enforcement action. The fault the Ombudsman found did not cause Mr X a significant personal injustice.

The complaint

1. Mr X complained the Council failed to take enforcement action against a business who painted the perimeter fence of their business a different colour to that granted through the planning permission.
2. Mr X says the Council has told him the colour is the same as granted through planning permission but Mr X disputes this.
3. Mr X says the colour of the fence and building impacts his view and amenity.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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

7. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X and the Council had opportunity to comment on my draft decision.

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What I found

The Law

9. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
10. Councils can take enforcement action if they find a developer has breached planning rules. However councils do not have to take enforcement action just because there has been a breach of planning control.
11. Government guidance says:
12. “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
13. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
14. Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.

Local Enforcement Plan and corporate enforcement policy

15. The Council has a statutory duty to investigate breaches of planning control and conditions attached to planning consents.
16. The Council’s Local Enforcement Plan says it will aim to tell a customer of a likely course of action within 20 working days of receiving a report which it does not consider a high-impact.
17. The Council says that unauthorised building of walls or fences falls under its low-impact group.
18. When the Council receives a low-impact report it will aim to review the report within five working days and complete a site visit, if necessary, within 15 working days. It will then tell the person of the course of action it is taking within 20 working days.
19. The Council says any enforcement activity on the back of its investigations is discretionary and it can decide that no action is necessary even if it finds a breach of planning controls or conditions.
20. The Council’s Local Enforcement Plan says the Council would not consider it normally expedient to take enforcement action where a breach of planning control occurs but where there is:
• A reasonable prospect that planning permission may be granted, subject to conditions; or
• No significant or immediate harm to the amenity or safety of residents or to the environment or areas of acknowledged importance
21. The Council says this is to ensure it is not taking enforcement action which are minor or technical which cause no harm to amenity.
22. If the Council finds no breach of planning controls or conditions it will close an investigation and advise the complainant of its reasons.

What happened

23. In November 2019, a business near Mr X’s property applied for planning permission to build new buildings and install a new perimeter fence.
24. In February 2020, the business proposed an amended layout for the planning application which included details of the perimeter fence being 2.8metres tall and a “mid-green” colour.
25. The Council accepted the planning application on 12 February 2020.
26. The business began construction of the new buildings and perimeter fence at the end of 2020.
27. Mr X complained to his councillor in January 2021 the fence was 3.3metres tall and a cream colour. Mr X’s councillor passed his concerns on to the Council on 18 January 2021.
28. The Council raised an enforcement case in response to Mr X’s concerns on 19 January 2021. The Council wrote to the site manager of the business on this date to advise about the concerns raised.
29. The site manager discussed this matter with the Council on 25 January 2021. The site manager advised the Council the colour was “mushroom” and was a mid-green/brown colour. The site manager advised the fence was only 2 metres tall.
30. Mr X’s councillor contacted the Council on 8 February 2021 to follow up on the concerns. The Council advised Mr X’s councillor it was looking into the enforcement case.
31. On 4 March 2021, the Council told the site manager the fence should be 2.8metres tall and a mid-green colour. The Council told the site manager to submit a new planning application to reflect the actual size and colour. The Council told Mr X’s councillor about this.
32. The site manager contacted the Council and advised the finished height of the fence was 2.8metres so fell in line with the planning application. The site manager said the colour of the fence was a beige/brown/green and advised others had used this colour elsewhere in the Council area.
33. The Council discussed the potential of making a retrospective planning application to change the colour with the site manager. The Council enforcement officer discussed this idea with a planning officer who advised the Council would unlikely support a retrospective application for the colour of the fence.
34. The Council asked the site manager on 31 March 2021 to repaint the fence a “mid-green” colour to rectify the planning control breach. On 15 April 2021, the site manager told the Council he disputed breaching the planning permission. The site manager said the planning application named “mid-green” as opposed to a specific colour. The site manager said the fencing used was a “mid-green” colour.
35. The Council and site manager continued to discuss the matter. The site manager provided photographs and colour charts to the Council. The Council arranged to attend the site on 30 April 2021.
36. The enforcement officer attended the site on 30 April 2021. The enforcement officer confirmed the site manager provided a “green range colour scheme” and they could match the fence colour on this colour scheme. The enforcement officer also noted that during the evening the colour of the fence blended into the countryside.
37. The enforcement officer discussed this matter with senior staff who decided the Council could not complete enforcement action because it failed to specify a particular colour for the fence in the planning application.
38. On 28 May 2021, the Council contacted Mr X’s councillor and sent the same correspondence to Mr X on 1 June 2021. The Council advised of the investigation it had completed. The Council advised it had been able to identify the colour used on a “green range” when attending the site. The Council said to take enforcement action it must identify a breach of planning conditions. Since the planning application allowed for a “mid-green” colour this was subjective and the Council could not take enforcement action.
39. Mr X disputed the Council’s decision on 1 June 2021. Mr X said the colour was a mushroom/beige colour and not a mid-green. Mr X asked the Council for an RAL number to prove the colour was in the green range.
40. The Council responded to Mr X on 3 June 2021. It advised the planning permission did not specify a RAL number. The Council said it had attended the site and matched the colour on a green range.
41. Mr X sought confirmation of the RAL number again. On 7 June 2021, the Council told Mr X it cannot use the RAL number to support enforcement and advised it had closed the enforcement case. Mr X continued to dispute this, so the Council directed Mr X about how to make a complaint. Mr X raised a complaint with the Council on 10 June 2021.
42. The Council provided a complaint response on 22 June 2021. The Council said:
• The fence colour confirmed on the planning application was “mid-green” but it had not used an RAL number.
• It had compared the colour of the fence to a colour chart and confirmed the fence fell within a “green range”.
• It had identified the colour as “Corus Colorcoat HPS200 (Mushroom SC)”.
• It had completed an enforcement investigation and had not been able to find enough evidence to support a breach of the planning application. Since the Council did not have enough evidence to support a breach it could not take enforcement action.
• Mr X could take his complaint to the Local Government and Social Care Ombudsman (the Ombudsman).
43. Mr X brought his complaint to the Ombudsman. Following enquiries from the Ombudsman the Council attended the site again and took photographs of the fencing. The Council said it considered the fencing blended into the surrounding scenery. The Council told the Ombudsman it did not consider there was value in reopening the enforcement case as it would not reach a different decision.

Analysis

44. Mr X complained the Council failed to take enforcement action against a business who painted the perimeter fence of their business a different colour to that granted through the planning permission.
45. The Council has a duty to investigate breaches of planning permissions reported to it.
46. The Council opened an investigation into Mr X’s concerns on the day following Mr X’s Councillor raising the matter with it. The Council acted in line with its policy in registering Mr X’s concerns and I do not find fault.
47. The Council liaised with the site manager and took suitable steps to investigate Mr X’s concerns. By 4 March 2021, the Council told the site manager, and Mr X’s councillor, of its decision to ask the site manager to submit a retrospective planning application. The Council took more than 20 working days to reach this point, this is fault. While this is fault, I do not consider the delay caused a significant personal injustice to Mr X.
48. Following the Council’s decision about the course of action it proposed to take on 4 March 2021, the enforcement team continued to investigate the matter to ensure this course of action would be successful. The Council’s planning department advised it would unlikely accept a retrospective application in these circumstances. The Council’s planning department is entitled to make this decision.
49. The Council’s enforcement team took suitable steps on 31 March 2021 by changing its proposed course of action by instead asking the site manager to repaint the fence. The Council took informal enforcement action at this point supported by its investigation. I do not find fault with the Council.
50. Since the site manager disputed the Council’s decision to ask him to repaint the fence, the Council needed to consider whether it could support formal enforcement action. The Council got extra information from the site manager and completed a site visit. The Council completed these actions to ensure it had all relevant evidence available to it to make an informed decision about enforcement. The Council took suitable steps to investigate Mr X’s concerns and I do not find fault.
51. The Council decided it did not have enough evidence to take enforcement action against the site manager. The Council made this decision because the colour named on the planning application document, “mid-green”, was vague. The Council said the term “mid-green” was subjective. The Council said it could not defensibly argue the colour the site manager chose did not fall into a “green range” since the enforcement officer could match the colour used on the fence on a green colour chart.
52. The Council’s policy says that any enforcement activity is discretionary, and it can decide not to take enforcement activity even if it finds a breach of planning controls.
53. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is: ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
54. The Council’s decision that it could not defensibly argue the colour used for the fence was not a “mid-green” is not a decision that is so outrageous that no sensible person could arrive at this decision. The Ombudsman cannot find fault with the Council’s decision not to take enforcement action.
55. Even if the Council had decided that it could defensibly argue the colour of the fence was not a “mid-green”, it may still have decided not to take formal enforcement action.
56. The Council’s policy says that it would unlikely take enforcement activity over a minor or technical breach which does not present a significant harm to the amenity of residents.
57. Even if the Council had decided the colour of the fence was not a “mid-green” it had still decided the fence blended into the surrounding scenery. This would mean the colour of the fence did not present a significant harm to the amenity of residents. The Council would unlikely take enforcement action in such a circumstance. This supports the Council’s decision not to take enforcement action and the Ombudsman does not find fault.
58. While the Ombudsman does not find fault with the decision not to take enforcement action by the Council, the Council has recognised fault with its planning department by approving a vague colour in the planning application. The Council has already provided feedback to its planning department about this matter. The Ombudsman considers the Council has rectified this fault through this action.

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Final decision

59. I have completed my investigation as the fault by the Council has not led to a significant personal injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman