The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of planning enforcement and building control matters at a property adjoining the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect some parts of the complaint to have been brought to the Ombudsman sooner, there is not enough evidence of fault by the Council, and there are other bodies better placed to consider the asbestos issues.
The complaint
The complainant, whom I refer to as Miss X, says the Council failed to take action to stop her neighbour building a poor-quality extension which she says encroaches on and has damaged her property, and which reduces levels of light into her home. She also says the neighbour buried asbestos in the garden.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6)) We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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) We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Health and Safety Executive (HSE), or the Environment Agency (EA) when it relates to issues other than flooding/drainage. (Local Government Act 1974, sections 25 and 34A, as amended)
How I considered this complaint
I considered information provided by Miss X and the Council, which included their complaint correspondence.
I have also considered our Assessment Code.
My assessment
The time restriction detailed in paragraph 5 above applies to any parts of the complaint about matters/events which Miss X was aware of more than 12 months before she contacted the Ombudsman. So, the issues which arose in September/October 2020 are caught by that restriction. I see no reason why Miss X was prevented from contacting us sooner, so the Ombudsman will not exercise discretion to consider them now.
And even if this time restriction did not apply, there is not enough evidence of fault by the Council to justify starting an investigation. In reaching this view, I am particularly mindful that: Planning enforcement action is discretionary, and government guidance advises councils to act proportionately in responding to breaches of planning control. In this case, the Council has explained the part of the development closest to Miss X is only marginally over the permitted development limits (i.e. development which does not require formal planning permission), so concluded it was not expedient to pursue planning enforcement action. The Council was entitled to use its professional judgement to make that decision, even if Miss X disagrees with it.
Caselaw has established that local authorities are not responsible for the impact of substandard building work carried out, even where they have signed the work off as compliant with the Building Regulations. Liability rests with those responsible for the work; that is, the people carrying out the work and those who have commissioned it. This means the Council has no powers to intervene if the neighbour’s extension encroaches on, or has caused damage to, Miss X’s property. Rather, these are all civil matters between Miss X and her neighbour. Similarly, the Council has no role in Party Wall disputes between neighbouring properties.
Finally, there are different public bodies that have a role in protecting the environment as it relates to waste and pollution control. The EA can use powers under the Environmental Protection Act to stop nuisance pollution. The EA also controls waste disposal through environmental permitting. Waste permits are required to transfer and dispose of waste. Regulations require special arrangements for disposal of potentially hazardous waste, such as asbestos. The HSE regulates safety in the workplace under the Health and Safety at Work Act. It can prosecute individuals or companies that breach safety regulations. The Council says the HSE or EA would be better suited to investigate any ongoing concerns Miss X has about the alleged burial of asbestos in the neighbour’s garden.
Final decision
We will not investigate Miss X’s complaint because it is reasonable to expect her to have complained to the Ombudsman sooner about the events in late-2020, there is not enough evidence of fault, and there are other bodies better placed to consider her concerns about asbestos.
Investigator's decision on behalf of the Ombudsman