Summary: We will not investigate Mrs X’s complaint about the Council’s oversight of the building of her neighbour’s extension, it not investigating issues with the development, and not supporting her. There is not enough evidence of fault by the Council to warrant us investigating. There is insufficient evidence that Council action or inaction caused Mrs X’s claimed injustices. It would be reasonable for Mrs X to take the private civil matters caused by the neighbour’s development to court if required. We also cannot achieve the outcomes she wants from her complaint.

The complaint

1. Mrs X lives next door to a property whose owner received planning permission for an extension. She says the neighbour did not build the extension in accordance with the granted planning permission. This has led to encroachment, damage to her property, and the extension’s roof linking to her guttering.
2. Mrs X complains the Council:
1. failed to oversee the building of the extension;
2. will not investigate the issues with the neighbour’s extension and guttering;
3. has failed to support her in the matter.
3. Mrs X says the guttering as installed overflows on to her property, which will cause long-term issues with damp and erosion of brickwork. She worries about the damage each time it rains hard and the water is noisy, keeping her awake at night. Mrs X says the neighbour’s builder cut into part of her roof without permission.
4. Mrs X wants the Council to:

• investigate how the extension was built outside the permission granted and the impacts on her property;
• work towards a practical solution to protect her property from damage;
• help her to get a signed maintenance and ownership agreement with the neighbour.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
6. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• we cannot achieve the outcome someone wants.

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

7. 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

8. I considered information from Mrs X, including documents produced by the Council, and the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X says that if the neighbour’s extension had been built in the right place in line with the Council’s permission, the encroachment and guttering problems would not have happened. She considers the Council should have made sure the extension was built in line with the plans and taken action when it was not, to resolve the guttering issues.
10. Compliance with a granted planning permission is the responsibility of the planning applicant and their contractors, not the Council. Therefore, the primary responsibility for the situation now reached between Mrs X and the neighbour results from the actions of the neighbour’s contractor, not from any action or inaction by the Council. The encroachment issue and claim of damage to her property by the neighbour’s extension and the guttering installed are private civil matters between her and her neighbour. The injustices Mrs X claims of the damage to her property and worry caused by this stem from actions by the neighbour and their builder, not by the Council. There is not enough evidence of Council fault causing Mrs X’s claimed injustices to warrant us investigating.
11. We note Mrs X says the neighbour has refused to reach agreements on maintenance of the shared drainage and the properties. That is not a matter within the control of the Council so it would not fall for them to investigate further. We note Mrs X considers the Council should support her in securing protections for her property and interests. But it is for Mrs X to pursue those private arrangements with her neighbour, either by agreement, or if agreement is not possible, through legal action. The Council has been sympathetic towards Mrs X’s situation. But there is no role for the Council in such private civil matters. It would be reasonable for Mrs X to take these issues to court if required because the legal process is the only one which can determine and make a ruling on the property damage and liability issues at the core of the complaint.
12. The Council’s Building Control officers visited the development. Building Control officers were satisfied the extension complied with Building Regulations. That is not a ‘sign-off’ process concerned with the quality control of every aspect of a build, which may not be satisfactory to an owner, neighbour or some other party. It was the officers’ remit to satisfy themselves the development does not pose significant risk to the safety of the public or residents. These officers have no role now in resolving the situation between Mrs X and her neighbour, which remains a private civil dispute about the outcome of how the neighbour’s contractor built the extension.
13. The Council’s planning enforcement officers also considered the extension as built. Councils’ enforcement powers are discretionary. We may only go behind a council’s decision where there is evidence their decision-making process has been flawed, and but for those errors a different decision would have been made. We cannot replace a council’s decision where it has been properly reached with our or someone else’s opinion. Officers assessed the information received about the extension. They decided the issues identified with the neighbour’s development were not causing serious harm to the public, which is the expediency test for whether to enforce. That was a decision officers were entitled to make. There is not enough evidence of fault in the Council’s enforcement decision-making process here to justify us investigating. We recognise Mrs X may disagree with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
14. We realise Mrs X wants the Council to investigate how the extension was built outside the permission granted and the impacts on her property, and be involved in reaching practical and formal agreements with her neighbour to protect her property. But as explained above, there is no role for the Council in resolving the private civil matters between Mrs X and the neighbour. It follows that further Council investigation of issues of liability which need a private arrangement between the parties, or a legal resolution, would not be justified. That we cannot achieve the outcomes Mrs X seeks from her complaint is a further reason why we will not investigate.

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Final decision

15. We will not investigate Mrs X’s complaint because:
• there is not enough evidence of fault by the Council to warrant us investigating; and
• there is insufficient evidence that Council action or inaction has caused the injustices claimed; and
• it would be reasonable for Mrs X to seek the outcomes she wants at court if required; and
• we cannot achieve the outcomes she wants from her complaint.

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Investigator's decision on behalf of the Ombudsman