• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary:  We will not investigate this complaint about the Council’s refusal to take action against the complaint’s neighbour, whom she says damaged her property when building an extension and installing a dropped kerb. We have not seen evidence of fault in the Council’s actions to justify an investigation. Also, if the complainant believes the Council is responsible for repairing her drive, she can make a claim on the Council’s insurance. If that fails, she can ask the court to consider the matter.

The complaint

1. The complainant, I shall call Mrs X says her neighbour failed to build their garage and double extension properly and has damaged her home. She complains the Council re-fuses to take action against her neighbour.
2. Mrs X wants the Council to repair all the damage caused by her neighbour.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. 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)

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How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Planning enforcement action is discretionary, and government guidance advises councils to act proportionately in responding to breaches of planning control. In this case, the Council has confirmed it has visited the site and Mrs X’s neighbour has complied with the planning condition requiring the construction of a dropped kerb and vehicle crossover.
8. Caselaw has established that local authorities are not responsible for the impact of sub-standard building work carried out. Liability rests with those responsible for the work; that is, the people carrying out the work and those who have commissioned it. This means the Council has no powers to intervene if the neighbour’s extension has caused damage to, Mrs X’s property. Rather, these are all civil matters between Mrs X and her neighbour. Similarly, the Council has no role in Party Wall disputes between neighbouring properties.
9. Mrs X believes the Council is responsible for repairing her drive. We cannot make findings on questions of legal liability. Only insurers or the courts can make those findings. If Mrs X does wish to pursue this issue, she should make a claim of liability to the Council’s insurers in the first instance. If she remains dissatisfied with the claim’s outcome, she may then pursue the liability decision required in court. It would not be unreasonable for Mrs X to take this route as it would then be a decision only a court would have the powers to make. A court can also make a binding decision whereas we may only make a recommendation.

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Final decision

10. We will not investigate Mrs X’s complaint because there is not enough evidence of fault in the Council’s actions.
11. Also, we cannot investigate claims of legal liability for damage, and it is reasonable for Mrs X to pursue this matter in the courts.

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Investigator's decision on behalf of the Ombudsman

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