The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decision not to formally enforce against a nearby unauthorised garden fence. There is not enough evidence of fault in the Council’s decision-making process to warrant an investigation.
The complaint
Mr X lives on a housing estate originally designed as open plan with no tall fences or walls to property frontages. He complains the Council has: failed to take planning enforcement against a householder on the estate who has installed a tall boundary fence at the front of their property; failed to require the maximum height limit of 18 inches for front boundary fences to be complied with, as set by the estate’s planning permission.
Mr X says the fence closes down the open plan design of the estate and is not in keeping. He says the Council’s decision not to enforce means he has lost his expectation of living in an open plan estate. Mr X wants the Council to take enforcement action against the fence’s owner, to get it removed and to reinstate the original agreed boundary structure.
The Ombudsman’s role and powers
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 or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) 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 from Mr X and the Council, relevant online maps, and the Ombudsman’s Assessment Code.
My assessment
In response to Mr X’s report about the fence, an officer visited the site to see it, and its location. Officers then considered the information they had gathered. They determined the fence as installed did require planning permission. But they closed the planning enforcement case because they decided if the owner applied for permission, the Council would be likely to grant it. They reached this view because of the mixture of other fences in the locality of the unauthorised fence. Officers decided it would not be expedient to take any further action on the matter. In their responses to Mr X’s complaint, the Council also advised its enforcement powers are discretionary, so it is for them to decide how and when to use them. They also have to follow national government guidance for their use, which is that councils should act proportionately in response to breaches of planning control, and only use enforcement as a last resort. Officers say the Council’s limited resources mean it cannot enforce every breach and must prioritise cases which they consider to be expedient to pursue and in the wider public interest.
We can only go behind a council’s decision where there has been fault in their decision-making process which, but for that fault, a different outcome would have been reached. Officers visited the site and assessed the matter within the relevant contexts of the Council’s policy, wider national government enforcement guidance, and the need for them to be prioritise cases in the wider public interest within the district. They reached the view the fence would likely receive permission if the owner submitted a retrospective planning application. This is a view officers were entitled to reach, and it informed their decision to not take formal enforcement action. There is not enough evidence of fault in the Council’s decision-making process here which would allow us to criticise the Council’s decision and the outcome of the enforcement case. I realise 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.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s decision-making process when deciding not to use its enforcement powers against the unauthorised garden fence to warrant an investigation.
Investigator's decision on behalf of the Ombudsman