Council ‘not responsible’ for damage to property
THE Ombudsman will not investigate a complaint about a council’s handling of a planning enforcement matter because the claimed injustice is not one for which it could be held responsible.
The Local Government Social Care Ombudsman examined a complaint from “Mrs X” who had complained to the body that Calderdale Council failed to take enforcement action for a breach of planning control which damaged her property.
She believed that because the council granted planning permission for the development and has not taken enforcement action, it should accept responsibility for the damage and provide her with compensation.
The Ombudsman investigates such complaints but says that as it is a free service it must use public money carefully and may decide not to start an investigation if the tests set out in its assessment code are not met.
Calderdale accepts Mrs X’s neighbour has failed to complete their development in accordance with the approved plans, said the Ombudsman.
But when a council identifies a breach of planning control it must consider the impact of the breach in planning terms when deciding how to address it, they said.
Formal enforcement action is discretionary and should be taken only as a last resort where a breach causes significant planning harm, said the Ombudsman.
In this case, they said, the impact of the breach does not concern a planning issue such as the visual impact of the development or its impact on neighbour privacy.
Mrs X argued instead that the way the development has been constructed has damaged her property.
But this is not a planning matter so the council cannot consider it in deciding whether to take formal action, said the Ombudsman, adding that even if it did, such action would not necessarily repair the damage to Mrs X’s property as this is not the purpose of enforcement action.
The Ombudsman said it is Mrs X’s neighbour’s building work which has damaged her property.
“If Mrs X wishes to seek a remedy for this she may wish to obtain legal advice about a claim against her neighbour or their builder.
“Alternatively, if she believes the council is liable for the damage she may seek advice on this point.
“But we could not hold the council responsible for damage caused by a third party in these circumstances.
“We will not investigate this complaint.
“This is because Mrs X’s injustice stems from the actions of her neighbour/their builder rather than any fault by the council,” said the Ombudsman.