Summary: We will not investigate this complaint about how the Council dealt with planning applications for developments near the complainant’s home. This is because it is unlikely an investigation could 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 about how the Council has dealt with two planning applications for developments near his home. Mr X says the Council has failed to take action to safeguard his property and his home has been significantly damaged.

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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:

• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(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 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

5. When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. Material considerations relate to the use and development of the land in the public interest and includes matters such as the impact on neighbouring properties and the relevant planning policies. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.

What happened

6. The Council received a planning application to build a four storey building to house residential apartments on the land adjacent to Mr X’s home. It considered the application and granted planning permission subject to conditions. Following this, it received a second application for the site. The second application sought permission to build a four storey building to provide nine self contained units. The Council again granted planning permission.
7. After works started to build the developments, Mr X contacted the Council as he had discovered the application form completed by the developer contained incorrect information relating to a tree in his garden. Mr X was concerned the development would damage his home and the tree.
8. Mr X says the Council failed to take any action to safeguard his property and there has now been significant damage. Mr X says the Council should compensate him.

Assessment

9. I will not investigate this complaint about how the Council dealt with two planning applications. This is because it is unlikely an investigation could achieve the outcome Mr X wants. Mr X can also seek a remedy in court for the claimed injustice.
10. Mr X says the Council had a duty of care and should not have allowed such deep excavation work to be carried out so close to the boundary with his home. Mr X also says the Council failed to take action once it became aware the application for the developments included incorrect information.
11. However, it would be the developer’s responsibility to ensure the information submitted with the application was accurate. I also cannot say Mr X has suffered any significant injustice because of the incorrect information on the application forms as the Council has explained why this did not affect its decision to grant planning permission. I understand Mr X disagrees, but the Council was entitled to use its professional judgment in this regard.
12. Mr X says thousands of pounds worth of damage has been caused as the Council failed to safeguard his property and take any action once it became aware of the issues. However, if Mr X believes the Council is responsible for the damage to his property because of the alleged failures, he is effectively saying the Council has been negligent. 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 Mr X cannot do this.

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Final decision

13. I will not investigate this complaint. This is because it is unlikely an investigation by the Ombudsman could achieve the outcome the complainant wants. Mr X can also seek a remedy in court for the claimed injustice.

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Investigator's decision on behalf of the Ombudsman