Summary: We will not investigate this complaint about the Council’s actions in relation to a planning application for a peat extraction plant. This is because the complaint is late. The complainant can also seek a remedy in court for the claimed injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X, has complained about the Council’s actions in relation to a planning application for a peat extraction plant near her home. Miss X says the Council’s failure to enforce planning conditions and properly monitor the site has led to significant damage to her property.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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What I found

6. The Council granted planning permission to allow peat extraction at a site near Miss X’s home many years ago. The permission was most recently renewed in 2003. As a condition of the 2003 permission the developer was required to implement a sluice gate and settling pond. However, this condition was not enforced due to the potential impact on local wildlife.
7. Miss X says significant damage has been caused to her property as a result of the peat extraction. She says much of the damage could have been avoided had the planning condition requiring the sluice gate been implemented. Miss X also complains the Council has failed to properly monitor the site and says it is failing in its duty of care to residents.

Assessment

8. I will not investigate this complaint about the Council’s actions in relation to peat extraction near Miss X’s home. This is because the complaint is late. Miss X can also take the matter to court if she believes the Council has been negligent.
9. A complaint is late if it has taken someone more than 12 months to complain to the Ombudsman. Miss X has known about the Council’s decision not to implement the 2003 planning condition requiring the sluice gate and settling pond for many years. Therefore, her complaint in this regard is late. I understand Miss X says the matter has been ongoing and the full consequences of the Council’s actions have only recently become apparent. But I see no good reason to exercise discretion to investigate as Miss X could have complained to the Ombudsman sooner.
10. Furthermore, Miss X says the Council is responsible for the damage to her property because of its failures. She is therefore effectively claiming the Council has been negligent. However, the Ombudsman cannot decide if a council is negligent and does not have the power to award damages. Only the courts can do this. In circumstances such as these we would expect the complainant to seek a remedy through the courts and I see no good reason why Miss X cannot do this.

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Final decision

11. We will not investigate this complaint. This is because the complaint is late and Miss X can seek a remedy in court for the claimed injustice.

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Investigator's decision on behalf of the Ombudsman