Summary: We will not investigate Mr X’s complaint about the Council deciding not to take enforcement action against a developer building on a site next to his property for not erecting a boundary fence in line with the agreed plans. There is not enough evidence of fault in the Council’s enforcement decision-making process to warrant us investigating. We also cannot achieve the outcome Mr X seeks from his complaint.

The complaint

1. Mr X lives in a property which backs on to a site which received planning permission for a new residential development. He complains the Council has decided not to enforce against the site’s developer for not installing the boundary fence in the same location as that specified in the permitted plans.
2. Mr X says the developer has installed the fence one metre away from his existing garden fence. He says this is a security and access risk to his property which will affect his daughter being able to safely use the garden. He is concerned the land in the gap between the fences will not be maintained and may become a ‘rat run’ for wildlife. Mr X is also concerned that because the fence line is not on his deeds, this may cause a problem when he comes to sell his house.
3. Mr X wants the Council to enforce against the developer and make it build the boundary treatment in compliance with the approved plans.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. Planning authorities may take enforcement action where they identify or receive a report they decide is a planning control breach. They are required to investigate claimed breaches, but any enforcement is discretionary. It is for the authority to decide whether it is expedient to use its enforcement powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.’ Councils acting as planning authorities have different options to respond to planning control breaches, from taking no action to issuing a formal Enforcement Notice.
8. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
9. Earlier in the planning process, Mr X and other neighbours raised concerns about the boundary treatment. The developer submitted a proposal the Council accepted and which satisfied Mr X and neighbours. But the developer did not comply with the final plan. The fence as installed was set back about a metre from Mr X’s own boundary fence. Mr X raised the matter with the Council. In response to Mr X’s concerns, the Council visited the location. Officers determined the developer had breached its planning permission by installing the fence in a different place than permitted. They considered whether the breach caused such planning harm as to justify them using their discretionary enforcement powers. Officers decided the matter caused insufficient harm for Council enforcement to be proportionate, expedient and in the public interest.
10. In making its decision not enforce, the Council followed its enforcement process, which aligns it with national government guidance on enforcement. Officers investigated and gathered relevant information to inform their decision. There is not enough evidence of fault in the Council’s enforcement decision‑making process here to warrant us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Mr X wants the Council to take enforcement action against the developer so it installs the boundary fence in line with the granted permission. We cannot order councils to take enforcement action against developers or any others in possession of planning permissions. That we cannot achieve the outcome Mr X seeks from the complaint is a further reason why we will not investigate.

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Final decision

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant us investigating; and
• we cannot achieve the outcome Mr X seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman