The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint that the Council wrongly advised her about a planning matter. This is because we cannot achieve any worthwhile outcome by investigating the matter further.
The complaint
The complainant, Ms X, complains the Council wrongly advised her about her rights to install a fence and gate along the boundary of her property. The Council has now issued her an enforcement notice.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b)) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about: delay – usually over eight weeks – by an authority in deciding an application for planning permission a decision to refuse planning permission conditions placed on planning permission a planning enforcement notice.
How I considered this complaint
I considered information provided by Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The wrongful advice Ms X refers to relates to a telephone conversation she had with the Council in late 2019. The Council confirms there is no record of this call available and we cannot therefore get to the bottom of what the Council told Ms X. Further, we cannot say what information Ms X provided. This is relevant because Ms X’s rights to put up a fence and gates is dependent on the location of the structure and its proximity to the public highway. There is no suggestion Ms X provided detailed plans to the officer who dealt with her enquiry and we could not therefore establish whether the advice, based on the information provided, was clearly flawed and amounted to fault. We cannot therefore recommend a remedy for it.
Ms X says she has been left not knowing what to do, but the Council has issued an enforcement notice and this sets out the steps she must take. If Ms X considers the enforcement notice was wrongly served, or that the timescale for compliance is not reasonable, she may appeal to the Planning Inspectorate.
Ms X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate this complaint. This is because we cannot get to the bottom of what Ms X told the Council in late 2019 or what advice the Council provided Ms X at that time. The Council has served Ms X an enforcement notice and it is for Ms X to decide whether to comply with the required actions or appeal.
Investigator's decision on behalf of the Ombudsman