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Doncaster Metropolitan Borough Council (17 014 704)

Category : Planning > Building control

Decision : Closed after initial enquiries

Decision date : 25 Jan 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mrs X’s complaint that the Council failed to carry out proper inspections on her neighbour’s extension. An investigation is unlikely to lead to a different outcome and we cannot achieve what she wants.

The complaint

  1. Mrs X complains the Council signed off her neighbours defective building work which has encroached on her land and is damaging her property. She wants the Council to cancel the completion certificate, force her neighbour to reinforce the foundations and compensate her for the damage.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A (6), as amended)

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What I found

  1. Mrs X complained to the Council that her neighbour has:
    • built his extension over the boundary line
    • carried out the work without a Party Wall Act agreement
    • put extra weight and strain in her property foundations
    • caused significant cosmetic damage to her property
  2. When carrying out their functions under the Building Regulations, local authorities will visit developments at various stages. But they are not present for most of the project and do not act as a ‘clerk of works’. The person commissioning the work must ensure that it is carried out according to the Building Regulations. If they are not competent to supervise the works, the owner should employ a suitably qualified person to do so.
  3. On request and, after taking “all reasonable steps,” the Council is satisfied that the work meets the Regulations, the Council must issue a completion certificate. This is not a guarantee that all works meet the required standard.
  4. The Council is not responsible for the failure of Mrs X’s neighbour to arrange a Party Wall agreement, nor can it act against the neighbour for building up to or over Mrs X’s boundary. These are civil matters and it is for Mrs X to decide whether to take legal action against her neighbour on these issues.
  5. The Council has confirmed it carried out an excavated inspection of the foundations. The building inspector advised the builder of the action he should take and told him to arrange for another inspection. The builder did not do this so the Council contacted him. He advised he has dug down alongside the foundations of Mr X’s property and poured concrete alongside and up to the same level as no 5.

Assessment

  1. I do not know if the Council carried out thorough inspections of the extension. But even if the Council was at fault the Ombudsman could not provide a remedy for Mrs X. The courts have held that a council cannot be held responsible for economic loss for the cost of remedying a defect that resulted from the local authority’s failure to ensure that a building complied with the building regulations. (Murphy v Brentwood District Council (1990))
  2. It is the Ombudsman’s view that only in exceptional circumstances should we seek to impose an obligation on councils where the courts have held, largely on grounds of public policy, there should be no liability in law. There are no exceptional circumstances which lead me to impose these obligations. Therefore, an investigation will not lead to a worthwhile outcome in this case.
  3. It is my view that Mrs X’s remedy is against her neighbour who is responsible for carrying out the work which she says has damaged her property.

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Final decision

  1. My view is that the Ombudsman should not investigate this complaint. This is because it is unlikely that further investigation will lead to a different outcome. And we cannot achieve what Mrs X wants.

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Investigator's decision on behalf of the Ombudsman

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