Summary: Mr X complained about how the Council dealt with external insulation works on a neighbouring house which he said encroached on his house. Mr X also complained the Council delayed responding to his concerns. The Council was at fault for delay in appointing a surveyor to determine the boundary location. This caused Mr X uncertainty, frustration and avoidable time and trouble. The Council has accepted delay in appointing a surveyor and has already apologised to Mr X and will make a payment to Mr X. It will also appoint a surveyor which remedies the injustice caused.

The complaint

1. Mr X complained about how the Council dealt with external insulation works on his neighbour’s house, which encroached on his property.
2. Mr X said the Council also delayed responding to his complaint. He said this caused him uncertainty, time and trouble. He would like the Council to determine the boundary between his property and his neighbour’s property and offer more compensation.

Back to top

The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I spoke to Mr X about his complaint and considered the information he provided.
6. I considered the Council's information about the complaint.
7. I considered relevant law and guidance and our guidance on remedies.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
11. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

Council complaint procedure

12. The Council has a complaints process as follows:
• it will acknowledge the complaint within five working days;
• a senior officer will investigate and respond to stage 1 complaints within 10 days of the complaint. If a response is not possible within 10 days it will contact the complainant and give an estimated response date, not exceeding a further 10 working days without good reason; and
• its complaints team, will investigate and respond at stage 2 within 20 working days. If a response is not possible within 20 workings days, it will contact the complainant and give an estimated response date, which will not exceed a further 10 working days without good reason.

What happened

13. Mr X lives in a terraced house, which adjoins a house the Council owns and rents to his neighbour. The Council carried out improvement works and attached external wall insulation to its property.
14. Mr X raised a boundary dispute with the Council. Mr X asked the Council to determine the boundary between his house and the Council owned house to show if the external wall insulation works had encroached on his property. The Council responded nine days later and said the Councils legal team would contact Mr X.
15. The Council did not contact Mr X again for four and a half months. It apologised for the delay, which it said was due to staffing changes at the Council. The Council asked Mr X’s permission to access his house to assess the boundary between his house and the Council owned property. Three weeks later Mr X responded to the Council and said it had all the information needed to make a decision.
16. The Council carried out a site visit to its property. Two and a half months later Mr X complained to us because he had still not received the Council’s final response. A week later the Council emailed Mr X to ask if it could visit his house to take measurements.
17. The Council visited its property and took measurements. A few days later the Council visited Mr X’s house, but Mr X said the Council did not take measurements. The same day the Council emailed him and told him ‘there is a difference of opinion regarding where the boundary of your premises lies’ and ‘the external wall insulation does not encroach on your property’. The Council agreed with Mr X that the matter should be passed to us and appoint a single expert to survey the land. The surveyor, who would be appointed jointly by the Council and Mr X. The surveyor would then confirm the exact position of the boundary. This did not happen.
18. Later, a year after Mr X first complained to the Council, it wrote to him with its final response. It said the Council still believed the boundary had not been encroached and that the party wall was owned by the Council and the external wall insulation was correctly attached. However, the Council said that, in order to conclude the matter, the Council needed to arrange a joint surveyor to re-assess the boundary and it would contact Mr X about this. The Council apologised to Mr X for the excessive delay to assess the boundary and offered him £100.

Enquiries

19. In response to my enquiries the Council said:
• it had not yet appointed a surveyor to assess the boundary dispute because of Council staffing changes;
• it accepted there had been excessive delay and it had apologised to Mr X and offered him £250; and

• it would appoint its own surveyor to assess the boundary and pay Mr X’s reasonable costs so he can appoint his own surveyor.

20. In response to my further enquiries, the Council said it does not have a party wall procedure for external wall insulation and boundary matters. It agreed to consider updating its procedures for situations like this.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant. If we find fault in the decision-making process, we must determine whether it caused injustice that should be remedied.
22. This decision will focus on the decision-making process. I will not offer an opinion on the boundary dispute as that is a private matter between the parties. If the parties cannot reach agreement, the dispute can only be resolved by a court.
23. Mr X raised a boundary dispute with the Council. The Council initially responded within nine days but it took another four and a half months to respond to his complaint.
24. We do expect complainants to cooperate with a council’s reasonable enquiries. Clearly it would have been more helpful if Mr X had arranged access to his property when the Council initially requested this. However the main reasons for delay in assessing the boundary was the Council’s inaction. After it sent its response, it took the Council a further five months to carry out site visits and to decide no encroachment had taken place. The delays are not in line with the Councils complaint process.
25. After Mr X challenged its conclusion, the Council told him it would appoint a joint surveyor to conclude the matter, but this did not happen.
26. The delays I have found above are fault. The Council is also at fault for failing to appoint a surveyor after saying it would do so.
27. Because of these faults Mr X was caused uncertainty, frustration and avoidable time and trouble.
28. In response to our enquiries, the Council said it:
• accepted there were excessive delays;
• had already apologised to Mr X and offered to pay him £250; and
• would appoint its own surveyor and pay Mr X reasonable costs for him to appoint his own surveyor.
29. This is appropriate and remedies the injustice caused. I realise that this dispute may continue after the surveyors provide their advice, but a boundary dispute is ultimately a matter for a court to determine.

Back to top

Agreed action

30. Within one month of the final decision the Council will:
1. pay Mr X £250 for the uncertainty, frustration and time and trouble he was put to because of the fault I have found; and
2. remind relevant staff to respond to formal complaints within the Council timescales and carry out the actions it has agreed to.
31. The Council will appoint its own surveyor and offer reasonable costs should Mr X wish to appoint his own, without further delay. The Council will write to us and confirm this has happened within one month of our final decision.
32. The Council will decide whether it needs to update its procedures relating to party wall and boundary matters. The Council will write to us with the outcome of any such review within three months of our final decision.

Back to top

Final decision

33. I have completed my investigation finding fault, causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman