Summary: The Ombudsman will not investigate Ms B’s complaint the Council has failed to act and require her neighbour to deal with a dangerous wall. Further consideration of the complaint is unlikely to find fault by the Council.

The complaint

1. The complainant, whom I shall call Ms B, complains the Council told her it would establish the ownership of a wall that forms the boundary between her and her neighbour’s property but has failed to do so. Ms B complains her neighbour has banked earth and planted trees against the wall, causing it to lean dangerously towards her property. Ms B complains the Council has failed to act to ensure her neighbour makes the wall safe and stops the activities she says are causing the damage.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information Ms B provided and the Council’s response to her complaints. I sent a draft decision to Ms B and considered the comments she made in reply before I made my final decision.

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What I found

5. The wall is on private land between Ms B and her neighbour. Ms B approached the Council in July 2018 with her concerns about the condition of the wall and says an officer told her they would find out who owned it. Ms B says she has provided evidence to the Council she does not own the wall, but the Council has not taken any action to determine who does own it.
6. Officers have visited the location and inspected the wall. They advised Ms B that while the wall was leaning, it was not considered an immediate danger. The officers suggested Ms B erected fencing around the wall in case it fell. Ms B says this means she cannot now access her land.
7. In response to Ms B’s complaints, the Council has told her it has no further role in the matter because the wall is privately owned and the question of who owns it is a civil matter to be resolved between Ms B and her neighbour.
8. While Ms B considers the Council should take further action, the Ombudsman will not investigate this complaint. The Council has powers under Section 77 of the Buildings Act 1984 to apply to the magistrates’ court for an order requiring the owner of a dangerous building or structure to take action. But there is a dispute over who owns the wall. Ownership of the wall is not a matter for the Council to resolve. And as officers have visited Ms B’s property, viewed the wall, considered the information Ms B has provided, provided advice to Ms B and explained why it will not take any further action, there are no reasons for the Ombudsman to criticise the way the Council has made its decision.
9. Ms B is concerned about the condition of some of her neighbour’s trees and the neighbour’s activities in banking earth against the wall. The trees are protected by Tree Preservation Orders. Ms B can apply to the Council for permission to carry out works to the trees, but if these are granted she would need permission from her neighbour to access their land and carry out those works.
10. Whether the neighbour’s actions are causing damage to the wall and potentially to Ms B’s property are civil matters and not for the Council to decide. Ms B may need to take legal advice to resolve the outstanding issues over the ownership of the wall and whether her neighbour’s actions have caused a loss for which action should be taken and / or damages paid.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because further consideration of the complaint is unlikely to find fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman