The Ombudsman's final decision
Summary: We will not investigate this complaint about the way the council considered the complainant’s report of breaches of planning control and the safety of a wall. There is not enough evidence of fault in the Council’s actions to justify an investigation.
The complaint
Mr X complains the Council: failed to act quickly on a breach of planning control; and failed to make his neighbour to bring a new wall up to the correct standard He wants the Council to pay him for his financial loss and make the neighbour correct the wall. Alternatively, he wants the Council to correct the wall and charge his neighbour for the work.
The Ombudsman’s role and powers
We 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 or continue an investigation if we decide there is not enough evidence of fault to justify investigating.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to the Council that his neighbour has breached planning control. He said the plans put in by a neighbour for a new property misrepresented a retaining structure as a hedge. He also said the hedge was meant to be protected but it was all removed as it has a retaining structure, and this undermined his garden. Mr X says the neighbour has built a wall which is not suitable to hold back Mr X’s garden which is at a higher level.
Mr X says because the Council delayed in dealing with his complaint he paid £500 for a structural engineer’s report because of his concerns about the effectiveness of the new retaining wall.
The Council advised Mr X the plans are correct, and the planning permission does not include any conditions to ensure the neighbour keeps the hedge. The planning decision states that any hedge that is not removed must be protected. Any hedge that is removed must be replanted before the new house is occupied. It also confirmed the development and wall are built within reasonable tolerances of the planning permission and it will not take enforcement action.
In response to Mr X’s specific concerns about the effectiveness of the wall as a retaining structure; a member of the Council’s building control team visited the property and inspected the wall. He confirmed the wall is not immediately dangerous. The Council advised a second inspection took place with a senior structural engineer and a senior building control surveyor. They also decided the wall is showing no sign of movement and cannot be considered dangerous. However, because of Mr X’s concerns, it agreed to check the wall for signs of movement every three months.
I understand Mr X believes the Council should have acted sooner when it received the reports of breaches of planning control. However, the Council confirms it received his report in April 2023. It assigned the case to a planning enforcement officer in May. The officer visited the site in June. The council’s guide to planning enforcement states that all reports of breaches of planning control will be investigated “as soon as it is able”. I have seen no evidence of fault in the Council’s consideration of Mr X’s report of breaches of planning control. I also understand Mr X chose to pay for a structural engineer’s report. However, this is because of the actions of his neighbour in removing the retaining structure and building a new wall. This was not the action of the Council.
In response to Mr X’s concerns about the structural soundness of the wall the Council has: made multiple site visits had qualified engineers inspect the wall confirmed the wall is not immediately dangerous and therefore it cannot carry out repairs under section 77 of the Building Act 1884 written to the neighbour to advise of the engineer’s concerns advised the neighbour of the requirement for a structural report and the need to carry out the report before construction on new dwelling agreed to monitor the wall every three months; and confirmed if movement is noted, it will ask the magistrate’s court for a court order to insist the neighbour makes relevant repairs.
Final decision
We will not investigate Mr X’s complaint. We have not seen evidence of fault in the way the Council considered his report of breaches of planning control and concerns about the safety of his neighbour’s wall.
Investigator's decision on behalf of the Ombudsman