Dorset Council (20 005 219)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 29 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to fulfil its public health and safety duties after he reported a dangerous structure in a public area. The Council was not at fault.

The complaint

  1. Mr X complained the Council failed to fulfil its public health and safety responsibilities after he reported a dangerous structure in a public area. He says its failure to act put him and the public at risk and caused him distress. He wants the Council to act to make the site safe and review its procedures on how it deals with reports of public health and safety concerns.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I read Mr X’s complaint and spoke with him about it on the phone.
  2. I made enquiries of the Council and considered information it sent me.
  3. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

Building safety

  1. Councils have an important role in ensuring buildings are safe for use. The statutory framework for these duties is the Building Act 1984. The council’s duty is to protect the public, rather than the interests of private individuals. If they consider a building or structure to be dangerous, they can order the owner to carry out works to make it safe under Section 77 of the Act. If they consider there to be an imminent danger, under Section 78, a council can carry out emergency works itself to remove the danger or to make a building or structure safe.

The Council’s procedure for when it receives a report of an unsafe structure

  1. When the Council receives a report of an unsafe structure, it first allocates the case to the area building control surveyor. The surveyor will gather information and visit the site to establish if there are any dangers and if any action is required and by whom. This will include consideration of whether any action is needed under the Building Act 1984.

What happened

  1. In June 2020, the Council received a report of an unsecured construction site in a publicly accessible area. A Council building surveyor visited the site. The surveyor met with the owner and advised them about security and reminded them of the need to keep the site secure.
  2. In July, the Council received a further report that the site was not secure and about improper disposal of waste. It contacted the owner again to remind them of the need to secure the site. It also referred the case to its environmental health team to investigate the waste disposal.
  3. At the end of July, Mr X contacted the Council. He reported several concerns about the site including that it was a fire hazard and members of the public had accessed the site and removed parts of the structure.
  4. The Council’s environmental health team conducted a site visit. Following this, it wrote to the owners asking them to remove waste material from an area near the site.
  5. The Council monitored the situation over the next 10 days. They contacted the Health and Safety Executive (HSE) who said they were aware construction work was about to start and had conducted an initial site visit. HSE agreed to monitor the site as a construction site and requested information from the Council to support them to do this, which the Council provided.
  6. The Council wrote to the site manager. It asked them again to remove the waste material near the site. It advised them that depending on what work was planned they may need planning permission or other relevant licences. It advised them to submit a planning pre-application if they intended to alter the structure or change its use. It said if they carried out unauthorised works without planning permission, they may be subject to enforcement action.
  7. Mr X complained to the Council. He said the Council had failed in its duties to protect public health and safety. He said the structure continued to be a public health and safety risk and would remain a significant hazard until it was completely removed. He complained he had been passed between Council departments and given inaccurate information. He asked the Council what it was going to do and to improve its procedure for when people reported public safety concerns. The Council accepted his complaint and started an investigation.
  8. Mr X also contacted the Council’s planning and enforcement teams and several other officers. He set out his concerns and asked why the Council’s building control team were not overseeing the work.
  9. The Council’s enforcement team responded to Mr X. It told him it was aware of the issues he had raised. It said it was unclear at present what the plans were for the structure. Until the owners decided this, the Council could not know if and what permissions may be required. It said it could not take enforcement action based on speculation about what might happen to the structure.
  10. A senior planning manager also responded to Mr X. It reassured him they were investigating whether there were any breaches of planning rules. It told him HSE were also involved and the Council would continue to review the situation.
  11. HSE conducted a site visit on 17 August 2020. It decided the site was not sufficiently secure and the work arrangements did not minimise health and safety risks for workers. It served the site manager with an improvement notice, telling it to secure the site and improve its health and safety procedures.
  12. Mr X told the Council he did not think it understood the seriousness of the situation. He said the structure was dangerous and posed a danger to the public and a fire risk to nearby properties.
  13. HSE reviewed the case on Friday 21 August 2020. It was not satisfied the site manager had made the required improvements to ensure the security of the site and worker health and safety. It served an immediate prohibition notice ordering the site manager to stop all work and to secure the site.
  14. The same day, Mr X emailed the Council’s chief executive setting out his concerns and included some photographs of workers engaging in potentially dangerous working practices on the site. The Council reviewed the case and an environmental health officer visited the site that afternoon. It noted that fencing was in place securing the site, confirmed work had stopped and noted the nearby waste had been removed. It decided no immediate action was required that afternoon, but it would review the case after the weekend.
  15. The Council reviewed the case on the Monday including speaking with the site owners. It decided it needed to take further action because:
    • The Council had received reports that members of the public had accessed the site over the weekend.
    • The contractor had now stopped all work.
    • The owners told it they were unwilling to act further to secure the site.
    • HSE had told it that now work had stopped and the site was no longer a construction site, they had limited powers of enforcement.
  16. As the owners had refused to secure the site, the Council decided it needed to take emergency action under Section 78 of the Building Act 1984. It told the owners of its intentions, served the notice and instructed local contractors to securely fence off the site the same day to make it safe.
  17. The Council visited the site the following day and was satisfied the site was now secure.
  18. Within the following month, it completed four further visits to check the fencing was still in place and the site was secure.
  19. The Council responded to Mr X’s formal complaint on 18 September 2020. It said it was satisfied the Council had fulfilled its public health and safety responsibilities. It said it had investigated his concerns but initially did not consider there were sufficient grounds for enforcement action. When it reviewed this position on 21 August 2020, it decided action was then needed. It immediately issued a notice under section 78 of the Building Act 1984 and took emergency measures to make the structure safe. It said its enforcement team did visit the site, but it was not initially clear what the plans were for the site or whether planning permission was needed. It said the Council would work closely with relevant partners going forward to coordinate any further actions. It did not uphold this part of his complaint. It did agree the Council could be clearer in the information it provided to the public about public health and safety matters and who the public should contact if they wanted to report a concern.
  20. The Council told Mr X it was continuing to advise the site owners about their responsibilities and the possibility they may need planning permission.
  21. Mr X was dissatisfied with the Council’s response and brought his complaint to us. The Council has told us that following Mr X’s complaint it had improved its website to clarify the roles of senior staff and improve its reporting procedures.
  22. The Council continued to monitor the site, and since Mr X’s complaint has acted to ensure it remained secure and recently taken further action to ensure public safety. It continues to engage with the owners about their plans for the site.

Analysis

  1. When the Council first became aware of activity at the site in June 2020, it acted in line with its policy be assigning a surveyor and completing a site visit. The surveyor provided advice to the site owner but did not consider any further action was required at this time.
  2. After Mr X reported concerns at the end of July, the Council responded appropriately by visiting the site the following day. It asked the owners to remove some waste and kept the situation under review. When it became aware the owners were planning to start construction work, it contacted HSE, who agreed to monitor the site as a construction site. The Council worked appropriately with HSE to ensure the site was being monitored once work started.
  3. When Mr X reported concerns about unsafe working practices, the Council visited the site the same day. HSE had also served a prohibition notice ordering the owners to immediately stop work. The Council considered the situation at that time and decided no further immediate action was needed. There was no fault in how the Council reached this decision, so I cannot criticise the decision made.
  4. It reviewed the case after the weekend, including speaking with the owners and considering reports received from the public. It considered the information and decided there was now sufficient grounds for enforcement action. It served the enforcement notice telling the owners it would take emergency action to make the site safe and instructed a local contractor to secure the site the same day. It then conducted a site visit to ensure the site had been made secure. No further work has taken place, but the Council continued to monitor the site and has taken further action when required to ensure public safety. It continues to communicate with the owners about plans for the site. These are appropriate actions, and the Council is not at fault.
  5. The Council partly upheld Mr X’s complaint that it could improve information available to the public about the responsibility of senior managers and clarify how to report concerns about dangerous structures. It has since improved information on its website following Mr X’s complaint. Despite the Council’s finding, I do not consider the failure to do this previously amounts to a finding of administrative fault. There was sufficient information available for Mr X and the wider public to find out how to report their concerns and the Council responded to Mr X appropriately.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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