The Ombudsman's final decision
Summary: We will not investigate this complaint about failure to take enforcement action which the complainants say caused flooding at their property. We cannot decide liability or award compensation for damages. It is reasonable to expect the complainant to claim compensation in court.
The complaint
Mr & Mrs X complain the Council failed to take enforcement action to ensure drainage work was completed on a site next to their home. They say this caused flooding at their property several years ago.
The complainants are seeking an apology, completion of the work and compensation for damage to property and stress.
The Ombudsman’s role and powers
The Ombudsman investigates 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 or may decide not to continue with an investigation if we decide: further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information provided by Mr & Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council accepts there was a technical breach of planning control as the owner of the site continued with the development before a condition for drainage was discharged.
However, it has confirmed it has worked with the owner to achieve compliance. It also confirms Officers have visited the site and all drainage works have now been completed according to the planning permission.
The Council has apologised for the length of time taken to resolve the drainage issue and explains this was due to complex issues and the involvement of multiple parties. I am satisfied the apology is a suitable remedy for this part of the complaint.
Mr & Mrs X are seeking compensation for the damage they say the Council’s lack of action caused to their property.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. Only a court can decide if an organisation has been negligent and so should pay damages..
We cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect Mr & Mrs X to seek a remedy in the courts, directly or through their insurers.
Final decision
We will not investigate Mr & Mrs X’s complaint because we are satisfied with the Council’s apology for a delay in achieving planning compliance at the site next to their home. It is reasonable for them to pursue their claim for compensation through the courts.
Investigator's decision on behalf of the Ombudsman