The Ombudsman's final decision:
Summary: Mrs B complains the Council has asked her to repair or replace a wall at her own cost that the Council considers to be potentially dangerous. Mrs B says the Council should pay half the costs and the Council has not followed the correct legal process. We find the courts are in the best position to decide the matter. So, we have ended our investigation.
- The complainant, who I will refer to as Mrs B, complains the Council has asked her to repair a wall at her own cost that the Council considers to be potentially dangerous. Mrs B says she has provided the Council with evidence to show the wall is a party wall and the Council should pay half the repair costs. Mrs B says the Council has not followed the law. Mrs B would like the Council to get legal advice on who is responsible for maintaining the wall, or do the works and pay for it. Mrs B is concerned the condition of the wall is getting worse and she may be liable if the wall injures someone.
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 have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I have considered Mrs B’s complaint and the supporting information she sent. I have considered correspondence provided by the Council. I have viewed the area on Google Streetview and have considered relevant law, available online. I have also shared a draft version of this statement with Mrs B and the Council, and have considered the comments I received in response.
What I found
Legal background – dangerous structures
- Sections 77 to 79 of the Building Act 1984 set out local authority powers to take action about dangerous structures in their area. But, these sections do not apply to councils in London.
- In London, the relevant law for dangerous structures is the London Local Authorities Act 2000. Section 45(1) of the Act says: ‘The provisions of Part VII of the Act of 1939 (which makes provision in relation to dangerous and neglected structures) shall apply to outer London boroughs’. The Act of 1939 is the London Building Acts (Amendment) Act 1939.
- So, in outer London the process set out in the London Building Acts (Amendment) Act 1939 must be followed rather than the Building Act 1984.
- The 1939 Act says if a person has not complied with a notice served by the local authority about a dangerous structure, the authority may apply to the court for an order to repair the dangerous structure.
- Mrs B owns a property in the Council’s area. A boundary wall runs along the back of this property, and neighbouring properties, next to a pavement and road.
- In March 2019 the Council sent a letter to Mrs B. The Council said it did a structural survey of the wall, which it considered potentially dangerous. The Council asked Mrs B to take down or repair the wall within seven days. The Council referred to sections 10 and 45 of the London Local Authorities Act 2000, and also the London Building Acts 1939 (as amended).
- The Council sent a further letter to Mrs B in April. The Council said Mrs B was liable to make the wall safe and do repairs. The Council provided the inspection report it wrote when it inspected the wall in March. The Council said it had consulted its highways department, and the wall is not the Council’s responsibility to maintain.
- Mrs B sent a letter to the Council in response. Mrs B said the wall is a party wall so the Council should take some responsibility for doing the repairs. Mrs B then put in a complaint to the Council.
- The Council responded to Mrs B’s complaint in June. The Council said the property owners are responsible for repairing the wall. The Council said it still owned one of the properties, so it would pay this property’s share of the total cost. The Council said if Mrs B did not take action the Council may take steps to remove the wall and place a charge on her property. Mrs B complained to us.
- Mrs B responded to the Council in July. Mrs B said the inspection report provided by the Council did not appear to be a structural survey, which the law requires. Mrs B also challenged the information the Council used to say she is responsible for maintaining part of the wall. Mrs B says the Council has not followed the process set out in the London Building Acts 1939.
- We do not normally investigate a complaint where we think the issues could reasonably be raised within a court of law. The issues Mrs B complains about are ongoing and are legal matters which the courts are in the best position to decide.
- If the Council decides Mrs B has not complied with the notice it sent to her requiring her to repair or replace the wall, it would need to apply to court for an order.
- The court is in the best position to decide whether the Council has followed the correct process and whether Mrs B must pay, either wholly or partly, for the costs of replacing or repairing the wall. So, I have decided to end our investigation.
- The courts are in the best position to decide the issues Mrs B complains about. So, I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman