Summary: We will not investigate this complaint about the Council’s decision to approve a retrospective planning application for a fence. We are unlikely to find fault in the way the Council considered the planning application.

The complaint

1. The complainant, I shall call Mr X says during the processing of his neighbour’s retrospective planning application the council demonstrated:
• Unprofessionalism
• Malpractice
• Incompetency
• Lack of transparency, care and impartiality
2. He also says the Council failed to respond to allegations of discrepancies in responses to request made under the Freedom of Information Act.
3. Mr X says if the Council had dealt with the application correctly, it would not have approved the application.

Back to top

The Ombudsman’s role and powers

4. 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
• there is another body better placed to consider this complaint

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

5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

Back to top

How I considered this complaint

6. I considered the information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Planning controls the design, location and appearance of development and its impact on public amenity. Planning controls are not designed to protect private rights or interests. The Council may grant planning permission with conditions to control the use or development of land.
9. Local Planning Authorities must consider each application it receives on its own merits and decide it in line with their local planning policies, unless material considerations suggest otherwise. Material considerations concern the use and development of land in the public interest and include issues such as overlooking, traffic generation and noise. People’s comments on planning and land use issues linked to development proposals will be material considerations. Councils must take such comments into account but do not have to agree with those comments.
10. A council planning officer will normally visit the application site (sometimes they may not) and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development.
11. Planning applications are usually made before development begins. However, sometimes applications are submitted afterwards, and these are known as ‘retrospective’ planning applications.
12. Mr X’s neighbour applied for planning permission to retain a fence they have erected which encloses the front and side of their property.
13. The Council publicised the application. Mr X objected on the following grounds:
• highway safety concerns
• low quality fencing materials
• security risk
• problems maintaining the boundary resulting in weed growth
• local covenant prohibiting fencing; and
• a similar application was refused in 2005
14. The Planning Officer prepared a report on the scheme. This includes, but is not limited to:
• a summary of Mr X’s objections
• confirmation that the Highway Authority (HA) does not object to the scheme but recommends the fence be reduced in height in one place to allow for improved visibility; and
• the relevant local and national planning policies; and
• the location of the fence.

The report confirms the applicant lowered the fence as recommended by the HA.

15. The Planning Officer concluded the fence is acceptable development and recommended the Council grant permission. A senior officer agreed with the recommendation and planning permission was granted according to the Council’s scheme of delegation.
16. I understand that Mr X disagrees with the decision and believes the fence poses a danger. However, the HA is satisfied with the arrangement and the Council is entitled to reply on the expert opinion when making its decision.
17. Mr X’s objections regarding the quality of the fencing, problems maintaining the boundary and local covenants are not material planning considerations and the Council cannot take them into account.
18. Mr X also complains about the Council’s responses to his request for information. It is reasonable to expect him to approach the Information Commissioner’s Officer on this point. This is the body set up by Parliament to uphold information rights.

Back to top

Final decision

19. We will not investigate Mr X’s complaint because we are unlikely to find fault in the way the Council consider a retrospective planning application for a fence.
20. And it is reasonable to expect Mr X to complain to the Information Commissioner’s Office if he has concerns about the Council’s responses to his requests for information.

Back to top

Investigator's decision on behalf of the Ombudsman