The Ombudsman's final decision:
Summary: Mr B complains that the Council has not taken action about numerous problems at the housing development where he lives, which has not been completed by the developer. Mr B says the problems include a lack of a drainage system which has meant properties have been flooded by sewage. It is too early to give detailed consideration to the issues Mr B complains about. This is because the Council’s planning enforcement investigation is still ongoing.
- The complainant, who I will refer to as Mr B, lives on a new housing development, which does not have a functioning drainage system, streetlights or a properly constructed road. Mr B says the lack of a connection to a sewage system has meant properties have been flooded by sewage and residents and their pets have been sick.
- Specifically, Mr B complains that:
- The Council did not properly inspect the construction of the development and wrongly issued building regulations completion certificates for all properties on the development even though it was clear the building regulations had not been complied with.
- The Council has not taken planning enforcement action despite planning conditions being breached including a requirement for an approved drainage scheme to be completed before properties were occupied.
- The Council’s environmental health department has not taken action even though a local brook has been polluted and residents health has been affected.
The Ombudsman’s role and powers
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I have considered Mr B’s complaint and the supporting information he sent. I have also discussed the complaint with Mr B. We asked the Council if it would consider the complaint under its complaints procedure. This is because we generally do not consider complaints unless a Council’s complaints procedure has been completed.
- The Council responded by saying it would not consider the complaint because residents have indicated a willingness to take legal action against the Council. Mr B says legal action is not being taken as an act of goodwill and in line with the Council’s request. The Council added that the issue complained about is still ongoing and the planning services manager is in regular contact with residents. Information provided by Mr B shows that the Council recently issued a Planning Contravention Notice regarding the planning issues Mr B complains about.
- I sent a draft version of this statement to Mr B and the Council, and have considered their comments in response.
What I found
- My view is it is too early to give detailed consideration to the issues Mr B complains about. The Council recently issued a Planning Contravention Notice, which is used to help understand if a breach of planning control has taken place, and its enforcement investigation is ongoing.
- I recognise Mr B considers the Council has delayed taking planning enforcement action in addition to more general complaints of delay and lack of action by the Council. But, the Council should be given the opportunity to investigate the planning issues Mr B complains about. Until the Council has completed its planning enforcement investigation it is too early to form a view on whether there has been fault by the Council, and whether any fault has caused Mr B and other residents an injustice. Planning enforcement can be a lengthy legal process and an investigation by the Ombudsman while the Council’s own investigation is ongoing is unlikely to achieve a meaningful outcome for Mr B and other residents.
- It would be open to Mr B to complain to us again once the Council has completed its planning enforcement investigation. But, the Council should be given the opportunity to respond to the complaint first.
- Also, we would need to give careful consideration to the scope of any investigation we start. We do not normally investigate complaints about a local authority wrongly approving defective building work under the building regulations.
- This is because the courts have decided that local authorities are not liable for the costs of putting right such defective work (Murphy v Brentwood District Council ). In addition, we would need to consider if Mr B and other residents have a court remedy which is reasonable for them to use.
- Furthermore, we would need to consider whether Mr B and other residents undertook relevant checks and ensured suitable safeguards were in place before purchasing properties on the development.
- It is too early to give detailed consideration to the issues Mr B complains about. So, I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman