Summary: Mr X says the homes of a group of residents whom he represents have been damaged by works on land owned by the Council. I have discontinued investigation of this complaint because Mr X and the other residents have a legal remedy available against the Council.

The complaint

1. Mr X complains on his own behalf as well as that of a group of residents. Mr X says their homes have been damaged by works on land owned by the Council. Mr X says contractors acting on behalf of the Council cleared and recut a dyke which runs alongside the back of their homes in 2014 and since then the gardens of their homes have been affected by subsidence.
2. Mr X is dissatisfied because the matter has been ongoing since 2014 without any action by the Council to resolve the problem. Mr X wants the Council to take action to remedy the subsidence problem affecting their homes.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered the complaint and background information provided by Mr X and the Council. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it.

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What I found

Background

7. Mr X and other residents have been in contact with the Council about the subsidence issue since 2014. In 2014, contractors acting on behalf of the County Council, with permission from the Council, cleared overgrown vegetation from a dyke close to the complainants’ homes. Residents noticed the dyke was unstable shortly afterwards. They contacted the Council. The Council referred them to its insurers. Its position was that it was not liable for any damage to their properties.
8. Mr X took up the matter again in 2019. The Council’s position remained that any land movement was not caused by the 2014 works. However, the Council said it would continue to monitor the land. Mr X says no technical officer has ever looked at it.
9. Residents commissioned a survey of the dyke at a cost of £2,500 to ascertain its condition. They sent the report to the Council. They say the Council’s initial response was positive and thought the Council had agreed to remediate the problems with the dyke. But then nothing happened following organisational changes at the Council.

Finding

10. Mr X and other residents can take legal action against the Council if they consider work done by the contractors (and by extension the Council) in 2014 led to the subsidence problems they are experiencing. I consider it is reasonable to expect them to use this remedy for two reasons. First, they would be protecting their proprietary rights and the courts are best placed to determine matters of negligence rather than the Ombudsman.
11. Second, the Council has mainly refused liability for any damage in its responses to residents since 2014. The Council considers this is a legal matter for anyone who wishes to make a claim against it. I recognise that residents received encouragement that the Council would undertake remediation work in its initial response to the survey they commissioned. But the Council reverted to its long held position that it is for residents to make a claim against it if they consider it is responsible for any problems with the dyke.
12. I recognise residents are frustrated by the responses, delayed responses, and in some cases, lack of response to their contact on this matter. These are the ancillary parts of the complaint. But their dissatisfaction with the Council’s conduct is not separable from the substantive issue of the complaint for which they have an alternative remedy available. The Ombudsman cannot pursue a complaint about these ancillary matters.

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Final decision

13. I discontinued this investigation and closed the complaint because Mr X and others can take legal action against the Council.

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Investigator's decision on behalf of the Ombudsman