The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council deciding not to take enforcement action against access gates erected next to a footpath used by the complainant. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault by the Council causing significant injustice to the complainant.
The complaint
The complainant, whom I refer to as Mrs X, disagrees with the Council’s decision that it is not expedient to take planning enforcement action against the erection of spiked, access gates at a residential property. The gates open on to a footpath where Mrs X walks, and she thinks they are detrimental to public welfare and safety.
The Ombudsman’s role and powers
The Ombudsman can 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 an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mrs X and the Council, which included copies of its complaint responses.
I also considered our Assessment Code.
My assessment
I appreciate Mrs X is unhappy with the Council’s decision not to pursue enforcement action against the erection of the gates. But the Ombudsman does not provide a right of appeal against that decision. Rather, our role is to review the process by which the enforcement decision was made, and to consider whether any fault in that process is likely to have influenced the outcome.
In my view, there is not enough evidence of fault in the way the Council reached its decision to justify the Ombudsman pursuing the matter further. In reaching this view I am particularly mindful that councils have discretion to take enforcement action to remedy a breach of planning control, but they are under no obligation to do so. In each case, councils have the discretion to decide whether further action is expedient. Government guidance is that councils should act proportionately when considering the expediency of taking enforcement action. There is no expectation councils should automatically enforce against every planning breach.
The Council has visited the site and explained to Mrs X the height of the gates exceeds the permitted development limits by only 8cm. It has also liaised with the highway authority, which advised the footpath is not registered as a highway, so it has no control over the use of the path. As such, the Council could only consider the height and appearance of the gates when assessing the extent of any harm they cause. The Council was entitled to reach the professional judgement that the gates are not sufficiently harmful to visual amenities to justify the use of its resources to pursue further action.
And whilst I note Mrs X has raised questions about the existence of spikes along the gates, I do not see that she is caused a significant injustice by their presence.
Final decision
We will not investigate Mrs X’s complaint because there is not enough evidence of fault by the Council causing her a significant injustice.
Investigator's decision on behalf of the Ombudsman