Summary: We will not investigate this complaint about damage caused to the complainant’s property by works to a nearby development. This is because it is unlikely an investigation would achieve the outcome the complainant wants. The complainant can also seek a remedy in court for the claimed injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained the Council failed to protect a listed building he owns from potential damage caused by a development approved for a nearby site.

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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)
4. 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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision and have considered his comments in response.

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What I found

What happened

6. The Council received a planning application and an application for listed building consent for a development near a property Mr X owns. The Council considered the applications and granted permission subject to conditions.
7. Mr X has contacted the Council since works started to complain about damage to his property. He says vibrations from large vehicles accessing the site are causing structural damage to the building he owns. He has also raised concerns about increased traffic accessing the site.

Assessment

8. Mr X has raised concerns about increased traffic using the access near his property. However, the case officer’s report addressed the acceptability of the development, including the impact on traffic and consulted the Local Highway Authority. The highway officer did initially raise concerns about the use of the access near Mr X’s property but decided the development would not increase the impact of the existing use. Mr X has raised concerns about the number of vehicles using the carpark. But a condition of the planning permission restricted the number of vehicles that can use the carpark. If Mr X believes this condition is not being complied with, he can contact the Council’s enforcement team to report a possible breach of planning control.
9. Mr X says the Council has failed to protect his listed building and the property is being damaged. He says barriers should have been erected and a pre-commencement survey should have been carried out before any building work started. The Council has recently arranged a structural survey and is carrying out monitoring in response to Mr X’s concerns. However, Mr X is unhappy with how it has dealt with the matter and says it should have acted sooner.
10. The Ombudsman will not usually investigate complaints about damage to a person’s property and cannot decide if a Council has been negligent or if it is liable for property damage. If Mr X believes the Council’s actions have caused damage to the building he owns, he can make a claim to its insurers and if this is rejected it would be reasonable for him to seek a remedy in the courts.
11. Mr X has also complained about the Council’s complaint handling. However, where the Ombudsman has decided not to investigate the main issues complained about, we will not usually use public resources to consider more minor issues such as complaint handling.

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Final decision

12. We will not investigate this complaint. This is because it is unlikely an investigation would achieve the outcome Mr X wants, and he can also seek a remedy in court for the claimed injustice.

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Investigator's decision on behalf of the Ombudsman