Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action against a developer. This is because Mr X has taken legal action against the Council and may make a claim against the developer.

The complaint

1. The complainant, Mr X, complains the Council has decided not to take enforcement action against the developer of his property. He says this has caused financial loss.

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The Ombudsman’s role and powers

2. 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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, 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.

(Local Government Act 1974, section 24A(6), as amended)

3. 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), 26(6)(c) and 34B(8), as amended)

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How I considered this complaint

4. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and considered his comments.

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What I found

5. Mr X bought one of several new-build properties from a developer. He says that when purchasing the property the developer and estate agent referred to plans approved by the Council; these showed a fence along the boundary between properties and also gave the specification for the access road between the new properties and the public highway. However, the developer did not provide the fence and Mr X says it has constructed the road to a lesser standard than that detailed on the plans. The developer has now moved on and has declined to undertake any further works.
6. Mr X asked the Council to take enforcement action against the developer but the Council refused to do so. The residents took legal action against the Council in respect of the fence but the court dismissed their claim. They then complained to the Council.
7. The Ombudsman cannot investigate any complaint about the Council’s decision not to take enforcement action against the developer for not installing the fence. This is because Mr X has taken legal action against the Council about the matter.
8. We will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action against the developer for constructing the access road to a different specification than that originally approved. This is because the issue is essentially a contractual dispute between Mr X and the developer.
9. A grant of planning permission provides no guarantee that a development will be built in accordance with the approved plans. A developer may apply to vary a proposal and amend or remove conditions attached to a planning permission and even if it identifies a breach of planning control it is under no duty to take formal enforcement action in every case. The access road is privately owned and maintained by the residents and the Council has explained it is concerned with the width of the road and its appearance rather than the quality and durability of the work.
10. If Mr X relied on the information provided by the developer and its estate agent about the road specification he may wish to seek legal advice about a claim against the developer. The courts are better placed to deal with this point.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because Mr X has taken legal action against the Council and may take legal action against the developer.

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Investigator's decision on behalf of the Ombudsman