Summary
Mr X complains about the Council’s refusal to take enforcement action against a neighbour’s fence. The Ombudsman will not investigate this complaint because the complaint is late and there is no reason Mr X could not have complained sooner. It is also the case we cannot question the decision the Council reached because it has considered the matter properly.
The complaint
Mr X complains about the Council’s refusal to take enforcement action against a neighbour’s fence.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
I considered the complainant’s comments on my draft decision.
My assessment
Mr X reported to the Council in 2019 that a neighbour had erected a fence which was higher than the previous two metre high fence.
The Council explained a fence up to two metres high could be built without planning permission. It considered whether an extra 60 cm would warrant enforcement action but decided that the effect upon Mr X’s amenity did not justify it. The Council told Mr X it did not intend to take enforcement action in November 2020, and he acknowledged receiving its email. The time for Mr X to complain to the Ombudsman therefore started in November 2020 at the latest. The law expects him to have complained by November 2021, so his complaint is late.
The Council’s final response to Mr X’s subsequent complaint was in July 2021. He did not complain to the Ombudsman until May 2022, ten months’ later. There is no good reason Mr X could not have complained more promptly and by November 2021, so there is no reason for us to investigate his complaint now.
Even if Mr X had complained in time, however, it is unlikely we would investigate his complaint. The Council was clearly aware of the nature and effect of the unauthorised development it was considering, and it was entitled to decide it was not expedient for it to take enforcement action.
I recognise Mr X disagrees with the Council, and says it would not have granted planning permission for the fence. Neither he nor we could assume that, however. The Council has reached a decision properly, and we are not an appeal body which could overturn it.
Final decision
We will not investigate Mr X’s complaint because it is late and there is no good reason he could not have complained sooner, nor evidence of procedural fault by the Council which would justify us investigating now.
Investigator's decision on behalf of the Ombudsman