Summary: Ms B complains the Council has not properly responded to her complaints about compliance with building regulations in her flat and a neighbouring flat. Ms B says this means she suffers from noise and odours from the neighbouring flat and shops below. The Ombudsman does not find fault in how the Council responded to Ms B’s complaint. We will not investigate concerns around her own flat as any change of use happened before she bought the property.

The complaint

1. The complainant, who I refer to as Ms B, has two complaints about the Council’s enforcement of building regulations:
• Ms B’s flat was converted from a home above a shop to a self-contained flat above a shop in 2014. The Council has not responded to her request for information about why it did not ensure the flat complied with building regulations.
• Ms B’s neighbour has lived above the shop next door since early 2019. The Council has not properly responded to her request for information about why it did not ensure her home complies with building regulations.
2. Ms B says she suffers from noise, odours and general nuisance from the shops below her and the neighbour’s home, because the properties are not properly insulated in line with building regulations.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered the information Ms B provided and spoke to her about the complaint. I sent a copy of my draft decision to Ms B and the Council for their comments.

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What I have investigated

8. I have investigated Ms B’s complaint about non-enforcement of building regulations to her neighbour’s flat in 2019. I have not investigated the complaint about her own flat. My reasons are set out at the end of this statement.

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What I found

Building Regulations

9. Building Regulations set out the minimum standards for completion of building work. Normally this applies only to works that have taken place. However, if there is a material change of use, for instance to a home or flat that did not exist previously, the owner may need to carry out works to ensure the home, as a whole, complies with building regulations. This may include meeting fire safety or sound proofing requirements.
10. The local authority has a general duty to ensure building regulation compliance in its area.

Background

11. Ms B moved into a flat above a shop in 2015. The previous owner had converted the flat in 2014 from a residence above the shop to a self-contained flat.
12. In 2018 Ms B complained to the Council that she was suffering from noise and odours from the shops below. Ms B said this was because the flat was not properly insulated and so did not follow building regulations.
13. Between 2018 and early 2019, the owner of the neighbouring shop moved into a residence above that shop. Ms B complained of excessive noise, odours and an overflowing bin outside the property. Ms B again complained the Council had not enforced building regulations when the neighbour moved in to ensure the home was properly insulated.
14. In the Council’s response it said the neighbour did not need planning permission as the home was allowed under permitted development rights. Ms B does not dispute this but says the home still needs to follow building regulations and the Council has done nothing to enforce this.
15. The Council says the neighbouring property was converted to a home above the shop in 1996 and met building regulations then. It says the flat has not always been occupied since then. However, the planning permission means a home was always allowed. Therefore, no material change of use has taken place.
16. Ms B says the Council has not provided evidence of the planning permission from 1997. She says the Council

Findings

17. I do not find the Council at fault for not checking compliance with building regulations in Ms B’s neighbour’s flat.
18. I have checked the planning history for the address online and this shows the Council did approve planning permission for the reinstatement of a residential premises above the shop in 1996. From that point on the property has always had permission for residential use, regardless of whether it was in continued occupation. This means that in 2018/19 there was not a material change of use.
19. If there was no material change of use in 2018/19, there was no duty on the owner then to make any changes to follow building regulations.
20. The change of use happened in 1996. I cannot meaningfully look into whether the Council properly ensured the compliance with building regulations in 1997 as this more than 20 years ago. We will normally only investigate complaints on issues that have taken place in the last 12 months. I will therefore not ask the Council for further information on this point.
21. I understand Ms B’s frustration that her neighbour’s home may not comply with current building regulations and this is impacting on her enjoyment of her home. However, primary responsibility for completing works in line with building regulations rests with the builder and/or owner. The Council has a general duty to ensure compliance but can only do so when the owner performs building works or there is a material change of use. Neither of these occurred in 2018/19.
22. Ms B has other options to address her concerns about noise and odours. She could ask the Council to investigate whether there is a statutory nuisance. I can see from an email chain that the Council may have referred this issue to its environmental health team already. If Ms B is concerned about the response or outcome, she could make a separate complaint about this.
23. If no statutory nuisance exists, Ms B could also take private action for nuisance against her neighbour.

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Final decision

24. I do not find fault in how the Council responded to Ms B’s concerns about building regulations and her neighbour’s flat. I have not investigated the matters relating to her own flat.

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Parts of the complaint that I did not investigate

25. I have not investigated Ms B’s complaint about building regulations and her own flat. This is because we will not investigate a complaint about works done before someone bought a property. Anyone buying a property should have a full survey completed before finishing the purchase. If a defect is discovered after the person has moved in, the owner may have a private remedy against the person who carried out the survey or the previous owner. In this case, any change of use happened in 2014 or before. Ms B bought the property in 2015.
26. I also note the shop has been in operation throughout so Ms B would have been aware of any defects causing noise from when she bought the property in 2015. We normally only investigate complaints that are brought to us within 12 months. Therefore, it is unlikely we would investigate this complaint anyway as it is out of time.
27. If Mrs B is concerned the Council has not properly responded to requests for information under a subject access request or freedom of information request, the appropriate body to investigate is the Information Commissioner. This is not something I have looked into as part of my investigation.

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Investigator's decision on behalf of the Ombudsman