Summary: We will not investigate this complaint about the Council’s enforcement action against Ms X’s neighbour for a breach of planning regulations. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Ms X complained about the Council’s delay in taking sufficient action against her neighbour who erected a fence which was 2,8 metres high when 2 metres is the maximum height permitted.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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)
3. The Ombudsman investigates 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 may decide not to continue with 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 organization.

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

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X says her neighbour erected a fence on top of a low wall which exceeds the 2 metre height limit and she reported this to the Council during the 2020 lockdown period. The Council opened an enforcement investigation and visited the site but took no action.
7. In 2021 she made a complaint about the Council’s failure to act against her neighbour. She received a reply stating the at the Council was considering enforcement action but nothing further. In 2021 she complained to us.
8. The Council told us that it served a planning contravention notice on Ms X’s neighbour in July 2021. This gives the resident an opportunity to regularise the unauthorised development by either removing it or applying for retrospective permission. The Council does not believe that a planning application would be approved as the fence is not in keeping with the local environment. Because the neighbour has not taken action to remove the fence in a reasonable time the Council has served an enforcement notice.
9. The neighbour must comply with the notice, appeal against it or risk further action including prosecution. At present the Council can take no further action until the neighbour acts. If no response is made to the notice, then we would expect the Council to inform Ms X of its next procedure.
10. Council enforcement powers are discretionary. Before taking enforcement action, the Council must be satisfied that such action is the right thing to do (that it is ‘expedient’). Government guidance does not say that councils should take action against all unauthorised development, but a council should take action where serious harm to local public amenity is being caused. The Government also says that councils should try informal methods of resolving the matter before using their legal powers.
11. In this case the Council has served a planning contravention notice and an enforcement notice which are the two formal procedures available to it. It was reasonable for it to give Ms X’s neighbour an opportunity to resolve the breach informally before taking more serious enforcement action.

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Final decision

12. We will not investigate this complaint about the Council’s enforcement action against Ms X’s neighbour for a breach of planning regulations. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman