Newcastle upon Tyne City Council (17 002 180)

Category : Planning > Building control

Decision : Upheld

Decision date : 14 May 2018

The Ombudsman's final decision:

Summary: Mr D complains the Council failed to take action against a housing developer when the house his son bought had not been built in accordance with the planning permission. He complains the Council issued a building regulation completion certificate when the house did not comply with the building regulations. There was fault by the Council in the response it gave to the pre-purchase enquiries. This did not cause any injustice to Mr S. There was no fault in the Council issuing a building regulation completion certificate. There was delay in considering the complaint. The Council will apologise and pay Mr D £100 in recognition of that failing. The complaints about the retrospective planning application will not be investigated as they happened too long ago.

The complaint

  1. Mr D is complaining on behalf of his son, Mr S. He says the Council failed to take suitable action against a housing developer who sold Mr S a house which had not been built in accordance with the planning permission. He complains the Council did not tell him the developer may have committed an offence under consumer protection legislation, the Council accepted inaccurate plans for a retrospective planning application and issued a completion certificate for the house when the Building Regulations had not been met. Mr D also complains the Council delayed dealing with his complaints.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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 considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments

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What I found

  1. Mr S reserved a house on a new housing development in March 2012. The plans for the house showed there would be no roads at the front of the property but there would be a road next to the rear garden. An alleyway would run along the side of the garden and house to the front door.
  2. After Mr S bought the house in June 2012, the developers built a garage and driveway for a neighbouring property over part of the path which led to the side alleyway. The developers then moved Mr S’s rear garden wall to provide an access path of 600mm from the road to Mr S’s rear garden and the side alleyway.
  3. Mr S’s father, Mr D, contacted the Council’s Building Control team in September 2013. He said that building regulations state that access to a property should be 900mm wide but the path leading to the alleyway was only 600mm wide.
  4. In the Council’s response, it said the developer had complied with Part M of the building regulations because there was a 900mm access to the principle entrance, the front door. It said the access to the rear of the property did not need to be 900mm under the building regulations.
  5. A Building Control Officer visited the site and spoke to Mr D about their concerns. He explained the issues they had with the developer over the access to the rear of the property were beyond the remit of building control. He advised Mr D to contact the Council’s planning department if he thought the house had not been built in accordance with the approved plans.
  6. Mr D contacted the Council’s planning department. It investigated and found the house had not been built in the location shown on the approved plans.
  7. The Council asked the developer to apply for retrospective planning permission, which it did in July 2014. Mr D says the developer submitted several inaccurate plans to the Council and he had to pay around £500 himself to have accurate plans drawn up. The Council says the plans submitted by the developer were accurate enough for it to fully assess the application. The Council granted retrospective planning permission in November 2014. Mr D says that it was the plan he had commissioned which was used to determine the retrospective planning applications.
  8. For the next 15 months, Mr D tried to resolve the access issue with the developer. He complained about the developer to a dispute resolution service but his complaint was rejected because it was out of time.
  9. Mr D then complained to the Council in April 2016 that it had allowed the developer to sell the house to Mr S using unauthorised plans. In the Council’s response, it explained it was not directly involved in the construction and sale of properties. It said the breach did not materialise until after the property was sold and occupied. It sought to negotiate a solution with the developer rather than taking enforcement action against individual property owners.
  10. Mr D was not satisfied and asked to escalate his complaint. He met with the Council’s Complaints Officer and provided further information about his complaint. Then in February 2017, Mr D met with the Complaints Officer, a Planning Team Manager and the Director responsible for Planning, Housing and Development Management. At the meeting, Mr D explained that when Mr S’s neighbour parked his car on his driveway, he could not access his property from the rear because the pathway was too narrow. He asked if building control had assessed the access to the property and asked why they had signed it off. The Complaints Officer told Mr D he would check with building control whether the developer had adhered to the building regulations.
  11. Mr D said he considered the Council should have checked the house had been built in accordance with the approved plans. The Planning Manager explained that once the Council had granted planning permission there was no statutory duty to visit the site.
  12. Mr D said that he had discussed the matter with trading standards and it had told him that it could not prosecute the developer because more than three years had passed since Mr S bought the property. Mr D said trading standards said it would have investigated if it had known about the situation before June 2015. The Complaints Officer said trading standards had advised it was out of time but he would confirm this before responding to his complaint.
  13. The Director also agreed to write to the developer, which he then did. He explained why Mr D was dissatisfied and said he considered the matter was between Mr S and the developer.
  14. In the Council’s final response to Mr D’s complaint, it confirmed that when Mr D contacted trading standards in April 2016, it was outside of the three year limit set out in the Consumer Protection from Unfair Trading Regulations 2008. It also told Mr D the Council was not authorised to take action under the Fraud Act 2006 and there were no grounds to take action under the Enterprise Act 2002. Trading standards had also advised Mr D the time limit for action in civil court is six years.
  15. The Council confirmed it had issued a building regulations completion certificate for Mr S’s house in February 2013. It said the principal entrance was the front door, which met the functional requirements of Part M of the building regulations. It also explained why it considered the means of escape from the property was compliant with Part B of the building regulations. It said there was no guidance in Building Regulations Approved Document M about the distance between the visitor parking and the principal entrance, but the route did need to be level or ramped. It said the route did meet with these requirements.
  16. The Council did not uphold Mr D’s complaint. Dissatisfied with the Council’s response, Mr D complained to the Ombudsman.

Analysis

Building Control

  1. Mr D considers the Council should have established the works were not being carried out in accordance with the plans when it carried out building control inspections.
  2. When carrying out their functions, councils will visit at various stages but they will not be present for most of the project and do not act as a ‘clerk of works’. On request and when satisfied the regulations have been met, they must issue a completion certificate. This is not a guarantee that all works have been done to the required standard.
  3. The building regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. 'Approved documents' give examples of how the regulations can be met, but these examples do not have to be followed.
  4. Approved Document M says the objective is to ‘make reasonable provision within the boundary of the plot of the dwelling for a disabled person to approach and gain access into the dwelling from the point of alighting from a vehicle which may be within or outside the plot.’
  5. The Council agrees the rear access is not compliant with Requirement M1 of the Building Regulations but it considers it is not designed for such purpose. The completion certificate issued for the property only relates to the land within the boundary of the plot. But the Council says it does give consideration, where appropriate, to areas which may be outside the boundary, but which are still within the wider area covered by the building regulation application for the site as a whole. In this case the developer demonstrated compliance with the building regulations by providing a level/ramped approach from visitor parking/drop off point located to the East of the front of the property, leading to a level/ramped access to the front door and into the dwelling via the principal entrance. This meant that access from the rear of the property was not a relevant consideration for building control: it was satisfied that overall the minimum standards of the building regulations were met.
  6. Mr D considers the ‘point of access’ is at the rear of the property. As there is not a 900mm wide access from there, he considers the regulations have not been met Mr D has provided a report by a Chartered Building Surveyor who also considers the approach route does not comply with Approved Document M.
  7. The guidance defines the principal entrance to building as the ‘entrance which a visitor not familiar with the building would normally expect to approach’. The Council states the route along the approach path at the front of the dwelling and up to the principal entrance is compliant. In saying that it has considered the distance from the visitor parking which is 81 metres. The guidance does not prescribe a maximum distance nor does it determine that it should be assumed that a disabled visitor is the driver of the vehicle. Under the general guidance it would be acceptable to recognise that a disabled visitor could be the passenger and not the driver and with that in mind a vehicle could approach to a point around 40m from the principal entrance to drop off a disabled visitor.
  8. The Council says it is appreciated that anyone living in the property and wishing to park their car on their defined parking area may consider the hardstanding (with its ultimate approach route to the rear of the property and the side alleyway) to be an appropriate ‘point of access’ to the dwelling. However it is reasonable to accept that a visitor who is unfamiliar with the property (as referred to in the approved document) would approach the building from the front of the property.
  9. Mr D has argued the entrance to the property would clearly be the rear entrance as it is by the parking area. The guidance specifically says that principal entrance is defined as the entrance that a visitor not familiar would normally expect to approach. Therefore I agree with the Council’s view that is in this case the front door. Mr D further says the drop off point the Council has referred to is further away than the Council says and not a proper parking point so it is not reasonable to consider that. But the building regulations are concerned with development within the curtilage of a property; that is what the guidance refers to. The Council has said it does have regard to the overall development of the estate but the key point here is that in terms of the property itself the Council considers and has explained why it considers it complies with the building regulations.
  10. Mr B has argued the house is not compliant with the guidance on means of escape in the event of fire. His point here is that the rear access from the patio doors to the garden is not satisfactory as a second exit because the garden is not large enough to be considered a place of safety and, for a wheelchair user, there is no means of escape to the footpath beyond the garden. The Council has responded to this point with a detailed explanation of why it considers this is not relevant. In summary it says the minimum requirements of the building regulations for means of escape does not require the rear door serving the dwelling to be provided with a level threshold, nor does it set recommendations for the minimum width of any garden gate or pathway leading to the place of safety.
  1. Mr B’s view and that of the expert he appointed is that the property does not comply with the building regulations. It is not for the Ombudsman to decide between different professional opinions. The Council has provided a detailed and robust explanation of why it considers the property complies with the building regulations. There was no fault in the Council’s assessment that the property complies with the building regulations.

Pre-purchase enquiries

  1. Before Mr S bought the house his legal advisers made the normal enquiries of the Council. These included questions about whether there was planning permission or planning applications in place or building regulation applications outstanding. The Council’s response was incorrect. It said there was no planning permission and no outstanding building regulation application.
  2. I do not know why Mr S, or his legal adviser, did not pursue this with the Council at the time. It is for the buyer to satisfy themselves as to the suitability of the property they are buying. The searches of the Council are part of that process. But I cannot say this error has caused any injustice to Mr S. The Council did not give any false assurances about the property; quite the contrary. The responses it provided should have prompted further questions about whether the property had the necessary approvals. In fact Mr S bought before the Council had issued the building regulation completion certificate for the property. There can, therefore, be no question that Mr S relied on the Council’s building control inspections in his decision to buy the property.

Trading Standards

  1. Mr D discovered in April 2016 that it was too late for the Council to prosecute the developer under the Consumer Protection from Unfair Trading Regulations 2008. Before June 2015, when the three years expired, Mr D had been in contact with building control officers and planning enforcement officers. Mr D considers these officers should have referred him to trading standards. While this would have been ideal, it was not fault they did not do so.

Complaint’s Procedure

  1. The Council responded promptly to Mr D’s first complaint. However, it took just over a year to respond to the second stage of Mr D’s complaint. Shortly after Mr D escalated his complaint he met with the complaints officer. There was then no substantive action by the Council until another meeting eight months later, again with the complaints officer. The Council then sent a substantive response after a further three months. The Council has said it was an increasing volume of complaints that led to the delay in responding to the complaint.

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Agreed action

  1. The Council will apologise and pay Mr D £100 in recognition of the delay in dealing with the complaint.

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Final decision

  1. There was fault by the Council in the response it gave to the pre-purchase enquiries. This did not cause any injustice to Mr S. There was no fault in the Council issuing a completion certificate. There was delay in considering the complaint. The Council will apologise and pay Mr D £100 in recognition of that failing.

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Parts of the complaint that I did not investigate

  1. As explained in paragraph three, the Ombudsman will generally only consider matters that a complainant has become aware of in the last 12 months. Mr D’s concerns about the plans submitted as part of the retrospective planning application date back to November 2014. Mr D did not complain to the Council about this until April 2016. I consider it would have been reasonable for Mr D to complain to the Council and the Ombudsman within 12 months. The delay by the Council in responding to Mr D’s complaint does not affect this. Mr D’s complaint was already over a year old when he complained to the Council and he could have come to the Ombudsman when he had not had a response within a reasonable time from the Council. For this reason, I have not investigated this aspect of Mr D’s complaint.

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Investigator's decision on behalf of the Ombudsman

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