Summary: We will not investigate Mr X’s complaint that the Council has failed to take appropriate action to remove or replace his neighbour’s fence, which he considers is too tall. This is because the matter does not cause him significant enough injustice to warrant investigation and we cannot achieve the outcome he wants.

The complaint

1. The complainant, Mr X, complains about a fence erected by his neighbour which he says is too tall and negatively impacts his property.

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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 effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)

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How I considered this complaint

5. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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Background

6. Mr X’s neighbour erected a new fence on the boundary between their property and Mr X’s several years ago. The Council confirms the fence required planning permission as it was too tall and because of its proximity to Mr X’s property.
7. Mr X’s neighbour applied for planning permission to develop their property and as part of the application they agreed to reduce the height of the fence. The Council approved the application on this basis and included a condition requiring the neighbour to fulfil their agreement.
8. The planning permission remains current but has not yet been implemented. As a result Mr X’s neighbour has not reduced the height of the fence and the Council says that due to the amount of time it has been there it is now immune from enforcement action.
9. Mr X is unhappy with the current situation and wants the Council to instruct his neighbour to replace the fence with something which is acceptable to both parties.

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My assessment

10. Any complaint about the Council’s grant of planning permission is late. The decision dates back more than three years and we consider it would have been reasonable for Mr X to complain about it sooner. It is also unlikely we would find fault by the Council as the evidence shows it considered the impact of the development including the fence when reaching its decision.
11. Mr X has only recently become aware that the fence is now immune from enforcement action and I do not therefore consider any complaint about the Council’s failure to take enforcement action to be outside our normal time limits. However the issue does not cause Mr X significant enough injustice to warrant further investigation. This is because the difference in height between the current fence and that approved under the planning application is only 20cm and Council did not require the reduction due to any adverse impact on Mr X’s amenity. There is also an existing building in Mr X’s neighbour’s garden which is significantly taller than the fence and the development approved by the Council is more than twice its height. We could not therefore say the additional 20cm causes significant harm to Mr X's property and we cannot achieve the outcome Mr X wants in any event.

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Final decision

12. We will not investigate this complaint. This is because the matter does not cause Mr X significant injustice and we cannot achieve the outcome he wants.

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Investigator's decision on behalf of the Ombudsman