Summary: Mr X complains the Merseyside Fire and Rescue Service refused to abide by the Party Wall agreement drawn up when the Service began work to a building next door to him. The Ombudsman will not investigate the complaint because it would be reasonable to expect Mr X to take the matter to court.

The complaint

1. The complainant, who I refer to as Mr X, says the Service has failed to abide by a Party Wall agreement drawn up when the Service began building work next door to him. He says the Service’s failure to provide the required protective sheeting around the scaffolding led to dust and debris falling on to his land which has impacted significantly on his health and that of his mother and his dog.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by Mr X and the Service. I gave Mr X the opportunity to comment on my draft decision and considered the information he provided in response.

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What I found

5. Mr X lives with his mother and dog in a property which shares a boundary with a building owned by the Service. When the Service began building works at its property a Party Wall agreement was drawn up between the two parties. Mr X says part of this Agreement stated that protective sheeting was to be provided to all scaffolding erected adjacent to his property.
6. Mr X contacted the Service to complain about the lack of sheeting provided and set out the problems this was causing, particularly with regard to health issues suffered by him, his mother and his dog who he says ingested concrete.
7. Mr X made a claim to the Service’s insurers for compensation in relation to the works and their impact upon him but his claim has been rejected and he has told the Service he will be taking legal action through the courts.

Assessment

8. The restriction highlighted at paragraph 3 of this statement applies to Mr X’s complaint. If he believes the Service breached the Party Wall agreement and that negligence by the Service has caused him harm then he can pursue a claim against it through the courts.
9. As Mr X has this alternative remedy available to him which we would reasonably expect him to make use of, the complaint falls outside our jurisdiction and will not be investigated.
10. In responding to my draft decision Mr X provided a copy of the Party Wall Agreement and various photographs relating to his complaint. However, these provide no new information which would lead me to change my decision.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because it would be reasonable to expect Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman