Summary: We will not investigate Ms C’s complaint about the Council’s decision not to take enforcement action about a breach of planning control. This is because there is not enough evidence of fault to justify an investigation.

The complaint

1. The complainant, who I will refer to as Ms C, complains the Council has not taken planning enforcement action about a fence erected adjacent to the road without planning permission. Ms C says the fence is a hazard for motorists and pedestrians. Ms C also says the fence is unsightly and is erected over a manhole cover.

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The Ombudsman’s role and powers

2. 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by Ms C and have viewed the fence using Google Streetview.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
7. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
8. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
9. The Council says it is satisfied the fence is a breach of planning control. But, the Council decided enforcement action was not justified because it is likely the Council would grant planning permission for the fence. The Council added that the manhole cover is a matter for the local water authority, but in any case, it appears the fence panel over the manhole cover can be removed to allow access.
10. We will not investigate Ms C’s complaint. This is because there is not enough evidence of fault to justify an investigation.
11. The Council has decided enforcement action is not justified. This was a judgement for the Council to make. The likelihood of planning permission being granted for the fence was a relevant factor for the Council to take into account when making this decision. Also, the presence of a manhole cover was not a material planning consideration the Council could consider when making its assessment. But, in any case, the Council was satisfied the fence is unlikely to prevent access to the manhole cover.
12. The information does not suggest the Council was at fault for the way it reached its decision. This means we cannot say the Council was wrong to decide planning enforcement action was not justified.

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Final decision

13. We will not investigate Ms C’s complaint because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman