Decision : Closed after initial enquiries
Decision date : 11 Feb 2020
The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s failure to control a neighbour’s development which has caused her harm. The Ombudsman will not investigate this complaint because there is no evidence of fault by the Council and there is a private remedy.
- Mrs X complains about the Council’s failure to control a neighbour’s development which has caused her harm. She says there has been a breach of planning permission and building regulations.
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’. 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.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered the comments of the complainant and the Council and the complainant has had an opportunity to comment on the draft decision.,
What I found
- Mrs X’s neighbour began building a development which Mrs X says, overlaps onto her land. She says that this is a breach of planning permission.
- The Council has investigated and concluded that the encroachment is minimal and does not warrant enforcement action. I am satisfied that the Council properly investigated the matter. In the absence of procedural fault, it is not for the Ombudsman to question the merits of the Council‘s decision not to take enforcement action.
- Mrs X also says that the neighbour has built foundations which have damaged her property. The Council says that the builder failed to request an inspection of the foundations until the roof was being installed. Mrs X says that the Council visited at that point.
- We will not investigate most building control complaints because primary responsibility for building work rests with those who commission it and those who do the work. When carrying out their functions, local authorities will visit at various stages but they are not required to do so. The number and timings of any inspections may vary by local authority and type of development. Local authorities will be not be present for the great majority of the project and do not act as a ‘clerk of works’.
- The Ombudsman consider that, where a complaint is about damage to property caused by a neighbour’s building work, it would normally be a matter for private legal action by the property owner against the neighbour. If work is being carried out, at or near the common boundary of the properties it is possible that a Party Wall Act Agreement should have been made between the neighbours. A local authority has no part to play in this agreement – it is a civil matter between the neighbours.
- We consider therefore that the Council is not responsible for the work carried out by the neighbour and Mrs X has a private remedy available to her by legal action against the neighbour.
- I will not investigate this complaint because there is no evidence of fault by the Council and there is a private legal remedy available against the neighbour.
Investigator's decision on behalf of the Ombudsman