Summary: We will not investigate Mr X’s complaint about the Council’s failure to protect his property from damage and trespass by its contractors. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council failed to protect his property from damage and trespass by its contractors while working to develop an adjacent plot of land. He would like the Council to compensate him for the damage, trespass and his time and trouble pursuing the complaint.

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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.
• it would be reasonable for the person to ask for a council review or appeal.

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

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

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What I found

5. The Council is developing a site adjacent to Mr X’s property. Mr X says it agreed to erect a barrier to prevent damage to his property but then failed to do so. As a result he says debris fell onto his property and caused damage. He also says contractors working for the Council trespassed on his land.
6. The Council says the aim of the barrier is to protect the boundary between Mr X’s property and the development site. It says it did not agree to put up a barrier along the whole length of the boundary and that its contractors did not trespass on his land. Mr X disputes this and wants the Council to pay him compensation.
7. Issues of property damage and trespass are for the courts. Whether the Council is liable for any damage to Mr X’s property is a legal issue and his claim that contractors acting for the Council trespassed on his land is a civil matter which does not cause him significant personal injustice.
8. Mr X believes the Council left the site in a dangerous condition but his concern is for the welfare of the public and there is no suggestion anyone has been harmed. The Council confirms the structure Mr X is concerned about remains stable and the Ombudsman cannot recommend a remedy for something which could have happened but did not. Mr X’s claimed injustice from this issue lies in the damage to his property which we will not investigate for the reasons set out above.

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Final decision

9. We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman