Exeter City Council (15 010 166)

Category : Housing > Private housing

Decision : Not upheld

Decision date : 21 Mar 2016

The Ombudsman's final decision:

Summary: The Council did not act with fault in the way it acted in a dispute between Mr G and his neighbour about repairs to an overflowing gutter causing damage to Mr G’s property. The Ombudsman will not consider this further because it is reasonable to expect Mr G to take civil action against his neighbour. The complaint is not upheld.

The complaint

  1. The complainant (whom I will call Mr G) complained the Council failed to take action against the owners of an adjoining property (Mr & Mrs H) to clear and repair guttering. The overflowing gutters cause water damage to the property from which he runs a business. Water penetrating the business also causes a health and safety risk for Mr G and his employees.
  2. Mr G complains specifically the Council is biased in its actions towards Mr H. He further complains the Council took enforcement action against him under health and safety legislation.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
  2. The Ombudsman has the power to start or discontinue an investigation into a complaint within her jurisdiction. She may decide not to start or continue with an investigation if she thinks the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8))

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How I considered this complaint

  1. I discussed the complaint with Mr G on the telephone. I considered all the information he sent me including photographs of water damage and copies of letters. I have also considered the information the Council sent me.
  2. The Ombudsman does not normally consider complaints where the complainant has a right to raise the matter in a court of law. This is the case here because Mr G could take action through the civil courts about damage caused by Mr H’s overflowing gutters. I have exercised discretion to investigate because Mr G alleges the Council has taken action against him because of Mr H’s influence.
  3. I gave Mr G and the Council an opportunity to comment on my draft findings. Neither party responded.

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What I found

  1. Mr G runs a business in a one-storey building ( ‘the workshop’) adjoining a two-storey house. The owners of the adjoining property cannot access the gutters on the side next to the workshop from their property. The water from the gutters should drain into a downpipe shared with Mr G’s workshop, but they are blocked and in disrepair. This means water overflows the gutter onto the roof of Mr G’s workshop. When there is heavy rain the water penetrates the roof, runs down the inside of the walls and forms puddles on the floor. This is dangerous for Mr G and his employees.
  2. In the past, Mr G says the Council has put pressure on Mr H to clear the gutters. In January 2014, Mr G complained again to the Council about the blocked gutters. An enforcement officer visited and wrote to Mr H asking him to clear the gutters, but despite reminders, Mr H did not carry out the work.
  3. In April 2014, Mr H’s builder contacted Mr G to arrange to replace the guttering and to tidy up the roof of the property which he was renovating. This meant the builder needed scaffolding on Mr G’s property. Mr G agreed only if Mr H provided written assurance he would be fully liable for any damage caused to Mr G’s property. He also wanted Mr H to give assurance he would clear the gutters every year. Mr H did not give the assurances Mr G wanted.
  4. Scaffolders who came to Mr G’s property to assess the work told him the joists on his roof were so wet it could collapse under the weight of scaffolding. It therefore needed to be supported using acro-props in the workshop. This would mean Mr G would be unable to use the workshop while the scaffolding was there.
  5. Mr M complained again in May 2014 when rainwater again penetrated the workshop roof and puddled on the floor. When the enforcement officer visited, Mr G complained the Council was allowing Mr H to get away with things because he was influential.
  6. The officer arranged a meeting on site with Mr G, Mr H and the builder. During the meeting, Mr G refused to allow scaffolding on his property, but did agree to Mr H carrying out the work using a cherrypicker from his yard. Mr G asked for one week’s notice of the works and said he wanted written assurances Mr H would be liable for any damage.
  7. Over the course of the next two months, the officer worked with both Mr G and Mr H to try to get an agreed date for the work. Mr G wanted Mr H to do the work in the summer when his business was least busy, but Mr H said his builder could not do the work until October.
  8. Mr G was also unhappy with the length of time Mr H said the works would take. He believed clearing and repairing the gutters should take only two days. The builder said he may need a week because he had to replace the guttering, and change the gradient so rainwater drained into a new downpipe on Mr H’s property. He also did not know whether he would need to do other repairs until he had properly inspected the gutters from the cherrypicker.
  9. On 10 September 2014 the enforcement officer telephoned Mr G to tell him Mr H proposed the work could be done the week beginning 20 October 2014. Mr G was unhappy with this and with the time it would take. Mr G believes Mr H wanted to carry out works to the chimney and to the roof at the same time. There is no evidence Mr H planned works other than to the guttering and downpipes then. The Council wrote to Mr G on 18 September 2014 giving him notice of the works.
  10. However, on 20 October, Mr G refused to allow access to his property. He said that he had not had any notice of the works so the yard behind the workshop was full and he needed constant access. The cherrypicker would prevent this.
  11. Mr G complained to his MP who referred the complaint to the Council. He said Mr G suggested the work could be done using a cherrypicker over a weekend, starting on a Friday. The Council responded to the MP pointing out Mr G had refused access and that the work proposed should sort out the problem.
  12. Mr G continued to complain the gutters were still overflowing and that the Council was biased towards Mr H.
  13. In December 2014, the Council served an Improvement Notice on Mr G under section 3(1) of the Health and Safety at Work Act 1974. This required him to get his roof and roof gulley inspected by a competent person to identify any defects allowing water to come in, to repair those defects and to remove any blockage in the gulley to allow free drainage of the water.
  14. At the same time, the Council served an Improvement Notice on Mrs H under s59 of the Building Act 1984. This required her to ensure the guttering on the house’s roof was realigned so it drained to the front of her property, not to the shared downpipe and to carry out other works to ensure the gutters did not overflow.
  15. The Notices both required Mr G and Mrs H to complete the works by the end of February 2015.
  16. Mr G complained about the notice as he believed the problem was due to the guttering on Mrs H’s property, not to his own gulley or roof. He also told the enforcement officer he was waiting for the guttering to be done first. He later sent a handwritten letter from an individual to say that he had inspected and cleaned the gutter. The letter made no mention of checking for any defects to the roof as the Notice required. The Council says it believes Mr G has only partially complied with the Notice. It does not consider Mr G needed to wait for Mr & Mrs H to repair the gutter repairs before assessing and repairing his own roof.
  17. Mrs H did not comply with her Notice by the end of February. The Council sent a letter to Mrs H saying that it would consider doing the work itself and charging Mrs H. The Council told Mr G what it was doing.
  18. Mrs H’s builder spoke to Mr G. Mr G agreed to allow access for two days only on 23 and 24 April 2015. He also wanted access to the workshop and to the yard at all times. He also wanted an assurance Mrs H would clean the gutters every year. The builder did not think this allowed him enough time to complete the works. This might leave Mrs H’s property without gutters indefinitely leading to water damage in her property.
  19. Despite informing his MP previously that he would allow work over a weekend, Mr G also refused to allow the works to extend into the weekend to give the builder more time. He said his insurance would not allow this, he was not prepared to give a key to Mr & Mrs H and was not prepared to come in specially to open and lock the gates at the beginning and end of the day.
  20. When Council officers met Mr G on site to discuss the situation, he was not prepared to compromise. He again stated the Council was biased towards Mr H and asked the officers to leave.
  21. Over the course of the next two months, the Council attempted to broker an arrangement between the parties. Mr G agreed to work starting on a Wednesday to allow more time, but wanted the work to be done in the summer holidays. Mr H said he could not arrange the work for this time, but could do it in October using scaffolding. Mr G was not happy with either the timing or the use of scaffolding.
  22. The work still has not been done. The Council says it does not intend to enforce either of the Notices or to take any further action. This is because Mr H cannot do the work without accessing Mr G’s property and Mr G will not allow that access. It is not therefore reasonable for it to pursue Mr H to do the work.
  23. They have informed Mr G that he should take his own legal action against Mr & Mrs H in the civil courts. They have similarly advised Mr & Mrs H that they could consider taking action under the Party Wall Act to allow them access to do the necessary works on their property from Mr G’s side. Neither party has so far taken civil legal action.

Analysis

  1. I do not consider there is any evidence the Council has been biased towards Mr H or that he has influenced the Council’s decisions in this matter. It is very clear there is a long history of acrimonious interactions between Mr G and Mr H.
  2. I consider the Council has done all it can to try to broker an agreement to allow the work to happen. The Council did not have to intervene in this matter at all, but chose to do so in the interests of resolving the matter for both parties. Its efforts resulted in the scheduling of the work for October 2014 and again in April 2015. No work took place due to intransigence on both sides. This is not the Council’s fault.
  3. Mr G could take his own civil legal action against Mr & Mrs H for any damage caused to his workshop by water coming from their gutters. He would first have to show the water was not penetrating due to defects in his own roof. This was partly why the Council served an Improvement Notice on him to check and repair the workshop roof.
  4. Mr G told me he is reluctant to take this step because of the expense. I consider it is reasonable to expect him to now do so if he remains aggrieved. It is also up to Mr H to decide whether to take action under the Party Wall Act to allow him to do the guttering and other works on this side of his house.

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Final decision

  1. My decision is there is no evidence the Council has acted with fault in the way Mr G complains about. I also consider the Ombudsman should complete her investigation because it is reasonable to expect Mr G to raise the issues about the disrepair of his neighbour’s guttering and consequential damage to his own property in the civil courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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