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Kettering Borough Council (17 018 617)

Category : Planning > Building control

Decision : Closed after initial enquiries

Decision date : 26 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr X’s complaint about inspections carried out by the Council under the Building Regulations. It is unlikely an investigation will lead to a different result and we cannot achieve the outcome Mr X is seeking.

The complaint

  1. Mr X says the Council should not have issued Building Regulation completion certificates for his flat because a FENSA approved installer did not install the windows.

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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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How I considered this complaint

  1. I considered the information provided by Mr X, including the Council’s response to his complaint. He commented on the draft version of this decision.

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What I found

  1. Mr X’s property is part of a development which is a conversion from factory use into residential homes. Mr X bought his property in 2006.
  2. Since owning the property, he has had to replace the windows. Mr X says the Council has told him that if the new windows are of the same design and installed by a FENSA approved installer then planning permission is not required. However, if a FENSA approved installer is not used then planning permission is not needed.
  3. Mr X says the developer who converted the property did not use a FENSA approved installer. Therefore, the windows do not have planning permission and the Council should not have issued a completion certificate for his flat.
  4. The Council says it received a report in 2012 that the windows had not been installed according to the planning permission. A planning enforcement officer inspected the site and decided the windows matched the design in the approved plans and therefore there was no breach of planning control.
  5. Mr X says if the Council had checked he is sure the windows would not have been signed off and it would not have issued a completion certificate for his flat. He wants the Council to compensate him for the cost of new windows and for the cost of a windows survey he and another property owner had carried out.

Analysis

  1. When carrying out their duties under the Building Regulations, local authorities will visit developments 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 after taking “all reasonable steps” that 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.
  2. But even if the Council was at fault in not making thorough inspections, the Ombudsman would not be able to provide a remedy. The courts have held (Murphy v Brentwood District Council (1990)) that “a council cannot be held responsible for economic loss for the cost of remedying a defect that resulted from a local authority’s failure to ensure that a building complied with the building regulations”.
  3. In another case, (Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd & ORS (1984)) the House of Lords held that an original building owner cannot successfully sue a council for not properly exercising its supervisory powers under the building regulations. It is up to the owner to ensure the building was erected under those Regulations.
  4. It is the Ombudsman’s view that only in exceptional circumstances should they seek to impose an obligation on councils where the courts have held, (largely on grounds of public policy), that there should be no liability in law. There are no exceptional circumstances which would lead me to decide to start an investigation into the Council’s actions in this case.

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Final decision

  1. I will not investigate this complaint. This is because it is unlikely an investigation will lead to a different outcome and we cannot achieve what Mr X wants.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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