Summary: We will not investigate this complaint about the Council’s handling of planning enforcement matters at a residential development where the complainant purchased a property. It is reasonable to expect the complainant to have contacted us sooner and to pursue a claim for any property damage via the courts.

The complaint

1. The complainant, whom I refer to as Mr X, says incorrect fences and retaining walls were erected at the residential development where he purchased a property, and the Council has failed to rectify this. Mr X says his garden and fencing were damaged by flooding, and believes this would not have happened if the correct fences and walls were in place.

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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. 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)
4. 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)
5. Finally, we have a general discretion to decide whether to start an investigation into any complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Council, which included copies of their correspondence.
7. I also considered our Assessment Code.

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My assessment

8. The time restriction detailed in paragraph 3 above applies to this complaint. Mr X purchased his property in late-2015, and says he has been corresponding with the Council about his concerns since then. Mr X contacted the Ombudsman in March 2023. I see no good reasons why he was prevented from complaining to us sooner, so the Ombudsman will not investigate this late complaint now.
9. And with reference to paragraph 4 above, if Mr X believes the Council is liable for any damage to his property as a result of flooding in late-2020, then we would normally expect him to pursue the matter in court. This is because the courts have legal expertise and powers to determine and make binding rulings on liability claims.
10. Lastly, in English law, there is a principle of ‘caveat emptor’ which translates as “let the buyer beware”. The rule places the responsibility on the buyer to carry out all necessary due diligence (for example, searches of the Council’s planning records, site visits, etc) prior to deciding to proceed with a purchase. The Ombudsman would therefore exercise our general discretion not to investigate this complaint, as it was open to Mr X to check whether the development had been built in accordance with the approved plans before he bought his property.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable to expect him to have contacted us sooner, and to pursue a claim for any property damage via the courts.

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Investigator's decision on behalf of the Ombudsman