Summary: We will not investigate Mr X’s complaint about the Council’s planning decision to grant permission for a neighbour’s fence on previously open land. There is not enough evidence of fault in the Council’s planning decision-making process to warrant us investigating. We also cannot achieve the outcome Mr X seeks.

The complaint

1. Mr X lives near a house where his front wall faces the side wall of the other property. That property’s owner received planning permission for a fence along their side wall, enclosing part of a previously open space. Mr X complains the Council:
1. gave the permission even though the applicant did not own the land where the fence would be;
2. incorrectly took account of other planning permissions and non-material issues when making its decision;
3. previously refused the neighbour’s permission because it breached their policy, but has granted this one despite the policy not changing.
2. Mr X wants the Council to revoke the planning permission.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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))

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How I considered this complaint

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

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My assessment

6. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault officers would have made a different decision. So we consider the processes officers followed to make decisions. We cannot replace a council’s decision with our own or someone else’s opinion where the decision has been reached after following the proper process.
7. Mr X says the Council was wrong to grant permission when the applicant his neighbour does not own the land. There is no requirement for an applicant to own land for which they seek planning permission, because land ownership is not a material planning issue. Once permission is granted, it is then for the applicant and the land’s legal owner to reach any agreement between them about transfer of ownership. But that is a private legal matter between the owner and the person with the permission, not one controlled by or involving the planning process administered by any planning authority. We will not investigate this matter because it was not fault for the Council to grant the planning permission for land the applicant did not or does not own.
8. Mr X’s other complaints relate to the information the Council considered when making its planning decision. He says the Council wrongly took account of a local councillor’s views on the look of other fences. There is no mention of those views in the Council’s planning report. Officers reached their decisions on the suitability of the design of the fences in their proposed location and included them in their report as part of the normal planning process. There is not enough evidence of fault in this part of the Council’s planning decision-making process to warrant us investigating here.
9. Mr X says officers said in their planning report that a precedent for his neighbour’s application was set by another nearby development ‘extending to the side into land that was open space’. The Council’s report refers to a nearby property where the owner sought and received planning permission for a side extension. The officers’ report does not say this development used any open space. It says that earlier development set a precedent for building on the original gable wall, not a precedent for the use of previously open space. There is not enough evidence of fault in this part of the Council’s planning decision-making to justify investigation.
10. Mr X also says the Council granted the permission contrary to its own policy, NE4, on open spaces, even though it refused a previous application from his neighbour using that policy. The Council agrees the proposed development is not in line with its open spaces policy. But it explains an application not meeting a policy does not mean it will be refused permission. Officers explained the Council refused the previous application because the applicant had proposed to fence in all the open space. The permitted application was for about a third of the area to be fenced. Officers considered whether the planning harms which would be caused by the proposed development to nearby properties and the wider area would give them grounds to refuse the requested permission. On assessing the location and size, scale and design of the development, and the loss of a portion of the open space, officers determined the impacts caused would not be sufficient to support a refusal, even where the policy was breached. They took account of the appropriate information to make their decision on the merits of the application they received. There is not enough evidence of fault in the Council’s planning 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. The outcome Mr X wants from his complaint is for the Council to revoke the planning permission. We cannot order councils to revoke permissions they have granted. That we cannot achieve the outcome Mr X seeks 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 planning decision-making process to warrant us investigating; and
• we cannot achieve the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman