Summary: We will not investigate Mrs X’s complaint about the Council not accepting responsibility for damage to her garden she claims has been caused by a developer’s use of the road, and officers not stopping that use. It would be reasonable for Mrs X to take her claim to insurers then the courts to pursue the finding she seeks. We also cannot achieve the outcomes she wants. There is not enough evidence of fault in the Council not enforcing against the developer to warrant us investigating.

The complaint

1. Mrs X lives next to a road which is being used by a developer as access for a development site. The Council granted permission for the development in 2018, including the access route. Mrs X complains the Council has:
1. failed to take responsibility for the damage to her garden caused by the developer’s use of the road; and
2. not taken action to stop the developer from using the road.
2. Mrs X says the development traffic has damaged her garden, making it unsafe for her to use. She says the matter is causing her stress and affecting her health, and she has spent time and been caused trouble pursuing the complaint. Mrs X wants her garden to be repaired and made safe. She also wants compensation for her stress, time and trouble.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We investigate 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 continue an investigation if we decide:

• we cannot achieve the outcome someone wants; or
• there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

6. I considered information from Mrs X and the Ombudsman’s Assessment Code.

Back to top

My assessment

7. The core claim of Mrs X’s complaint is that the developer’s vehicles using the access near her property have caused damage to her garden. She believes the Council is responsible for this damage because its planning decision allowed the developer to use the road as its main site access. For us to form a view on this complaint, we would need to be able to decide who is responsible for Mrs X’s property damage. This is a legal question we cannot decide. We cannot make legal findings on issues of liability for damages to someone’s private property. Only insurers or the courts can make such decisions.
8. The Council officers’ position within the complaint has been to deny liability. If Mrs X has not done so already, she may make a claim for her damages against the Council’s insurer. If the insurer denies liability, she may wish to pursue her claim through the courts. We recognise Mrs X may be reluctant to make an insurance or legal claim. But it would be reasonable for her to pursue this route because it is the one she would need to use to get the finding of legal liability she needs to seek a resolution.
9. Mrs X may also consider a damages claim to the developer’s insurer. As with an insurance claim against the Council, if the developer denies liability, this would also be a legal question which could only then be resolved by the courts. Mrs X may wish to get independent legal advice before pursuing any court route.
10. It follows from the above that we cannot order or recommend the Council to repair Mrs X’s garden or provide any other financial remedy in this matter, as that outcome would require us to first make a legal liability decision on the property damage issue. That we cannot achieve the outcomes Mr X seeks is a further reason why we will not investigate.
11. The Council granted the relevant planning permission for the development, including site access, several years ago. The Council would only be able to take enforcement action to stop the developer using the access route if there has been a breach of the conditions placed on the planning permission. In response to Mrs X’s complaint, officers visited the site and Mrs X’s property. Officers confirmed that the developer has been using the access in line with the planning permission as granted. They determined the Council had no planning grounds to take any enforcement action against the developer.
12. We may only go behind a council decision where there has been fault in the decision-making process officers followed and but for that fault a different decision would have been made. Officers gathered the relevant evidence from the planning history and from the situation on-site to reach their decision. There is not enough evidence of fault by the Council in the process it followed to decide not to enforce against the developer to warrant us investigating. We recognise Mrs X may disagree with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.

Back to top

Final decision

13. We will not investigate Mrs X’s complaint because:
• it would be reasonable for her to take her claim to the Council’s insurer then the courts to pursue the legal finding she requires; and
• we cannot achieve the outcomes she seeks; and
• there is not enough evidence of fault in the Council not enforcing against the developer for using the access road to warrant us investigating.

Back to top

Investigator's decision on behalf of the Ombudsman