Summary: Mr D considers that, when checking whether a new development near his home complied with the Building Regulations, the Council failed to take adequate steps to determine the safety of the retaining wall which supports the land on which his house is situated. The Ombudsman has found no fault in the way that the Council has responded to his concerns about the safety of the wall and whether it is covered by the Building Regulations.

The complaint

1. Mr D is concerned that the retaining wall on the boundary of his property is unsafe and should not have been passed by the Council’s Building Inspectors.
2. He says the Council:
• wrongly decided that the wall was not covered by the Building Regulations;
• has not taken adequate steps to ensure that the retaining wall complies with the Building Regulations; but
• has instead relied on the piling report that the piling company has provided, although this was contradicted by the site engineer.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

How I considered this complaint

5. I have considered Mr D’s written complaint and supporting papers and spoken with him. I have made enquiries of the Council and considered its response and Mr D’s comments on that response. I have also sent Mr D and the Council a draft decision and invited their comments.

Back to top

What I found

6. Most building work requires Building Regulations approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made. The legislative framework of the Building Regulations is principally made up of The Building Regulations 2010 and The Building (Approved Inspectors etc.) Regulations 2010.
7. The 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.
8. The primary responsibility for building work rests with those who commission it and those who do the work.
9. When carrying out their functions, local authorities will visit at various stages, but they are not required to do so. The number and timings of any inspections may vary by local authority and type of development. Local authorities will be not be present for the great majority of the project and do not act as a “clerk of works”.
10. On request and when satisfied after taking “all reasonable steps” that the Building 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.

The Building Regulations – walls

11. The Government’s Planning Portal website provides information on the Building Regulations. It states that:

“Fences, walls and gates do not require building regulation approval.”

“Although building regulations do not apply, the structures must be structurally sound and maintained.”

What happened

12. Mr D owns his own home. In 2016, the Council granted planning permission for a housing development behind his house. The approved plans show garages to the rear of Mr D’s back garden. Mr D’s back garden is on higher land than the garages, so the plans included a retaining wall on the boundary with his property, around 4 metres from the main rear wall of his house.
13. The retaining wall was designed with both “hard” and “soft” pilings. The soft pilings were to be installed first and would be sunk to a depth of 0.5 metres below the ground. Between the soft pilings, hard pilings would provide the main support for the retaining wall and would be sunk considerably deeper into the ground, depending on the level of excavation of earth. The design standard for the hard piles was a minimum of 50% below ground plus 1 metre.
14. Construction started in 2016. Mr D was concerned about the impact on his home and spoke with the site engineer and piling company. He then contacted the Council which had been appointed to consider compliance with the Building Regulations.
15. The Council’s view was that the wall was not covered by the Building Regulations, though it should be structurally sound. However, given Mr D’s concerns and as a goodwill gesture, the Council agreed to carry out the following checks:
• it reviewed the drawings to determine the nature and scope of the project;
• it noted the existing and proposed ground levels;
• it considered that the details of the retaining wall, including the diameter of the piles, were a suitable method of construction for the proposed work;
• it reviewed the calculations provided, using industry standard software, to determine an appropriate depth of the retaining wall, based on an independent ground investigation of the soil conditions and the geological map;
• it checked the input data, and reviewed the output results which were considered satisfactory;
• it considered the grade of concrete and reinforcement, and the cover to the reinforcement to be satisfactory in terms of durability – these were checked using a spreadsheet based on an appropriate British Standard, which is considered acceptable under the Building Regulations;
• it checked the drawings for consistency with the calculations and found them satisfactory;
• it noted that the design was consistent with BSEN 1997-1-1994 Geotechnical Design (Eurocode EC 7) and currently accepted standards and good practice;
• it therefore considered the design and calculations to be satisfactory.
16. In late 2017, Mr D again contacted the Council with questions about the wall. He said the site engineer had told him that the piles were only half in and half out of the ground, rather than the two-thirds in the ground shown in the information provided by the Piling Company.
17. He also raised concerns that, following his enquiries, the Piling Company had passed the piling log onto the developer rather than sending it directly to the Council. He was concerned about why the Piling Company apparently changed its view on assisting him.
18. The Council’s in-house checking engineer compared the piling log against the design calculations, and the layout drawings. The piling log contains a range of data including the pile reference number, the date and time each pile was inserted, its target length, actual bored length and diameter. He confirmed that the length of the piles was in accordance with the calculated length at each location by referring to the locations and wall heights shown on the drawings.
19. The Council confirmed that it had no outstanding concerns regarding the wall. Mr D escalated his complaint through the Council’s complaints procedures. The Council explained that it remained its view that the works do not fall within the scope of the Building Regulations. However, even if that were the case, it considered the works would comply.

My assessment

Is the wall covered by the Building Regulations?

20. As set out on the Planning Portal website, a wall would not normally be covered by the Building Regulations. However, Mr D says that other local authorities have expressed the view that the Building Regulations would apply where a retaining wall supports land with a dwelling house or protects a property beneath.
21. The Council explained in paragraph 8 of its complaint response to Mr D dated 13 June 2018 that:

“Building Regulations standards apply to the construction of buildings and building work that will affect the stability of another building and not to work supporting land. Initially it was considered that the work may not have been within scope of the requirements…”

22. However, the Building Regulations 2010, paragraph (3)(2)(a) states:

"An alteration is material for the purposes of these Regulations if the work, or any part of it, would at any stage result… in a building or controlled service or fitting not complying with a relevant requirement where previously it did…", and

23. Having regard to this paragraph, the Council took the view that the work could be covered by the Building Regulations, because the works might be considered to affect the stability of another building, rather than just supporting land. Therefore, in order to provide reassurance to Mr D and a cautious interpretation of the Regulations, it agreed to check the wall for compliance with the standards.
24. The Council assessed the works carried out and considers that the wall meets the standards that would be required, were the Regulations to apply. However, it remains of the view that the works are not covered by the Building Regulations.
25. I appreciate that Mr D may find the Council’s position confusing, but I do not consider that the Council has misled Mr D in this regard. Moreover, although I appreciate that other local authorities may take a different view as to whether the Regulations would apply in this specific case, it is not for the Ombudsman to question the Council’s professional judgement in this regard. I see no fault here.

Has the Council taken adequate steps to check the wall?

26. Mr D has questioned whether the Council has taken adequate steps to check the wall, and what standards should apply.
27. He says the site engineer allegedly told him that the hard piling would be half in and half out of the ground, but it should be 2/3 buried and 1/3 above ground. He says officers from the Building Control team have told him that the design report provides for a general standard of 50% below ground plus 1 metre, while a senior planning officer in 2016 recalled that the piles should be around 8 metres. He considers that the pile log is inconsistent with the above statements.
28. The Council does not consider that the retaining wall is covered by the Regulations, so it did not undertake a physical inspection of the piling as part of its site inspection. But, even if it had decided that the wall was covered by the Regulations, there was no requirement for it to inspect the piling, nor would this have been feasible. It would still have needed to rely on the piling log.
29. The Council has found nothing in the wall’s physical condition which would raise concerns. However, it has undertaken an investigation and found that, if the Building Regulations applied, it considers that the wall would comply.
30. The Council has explained in its email of 21 December 2017 to Mr D that the drawings show the retained height of the wall (i.e. the height above ground) adjacent to Mr D’s home ranges from 1.84 to 3.0 metres. The hard piles range from 6.4 to 9.4 metres; the soft piles from 3.0 to 4.25 metres.
31. The officer explained that it was not possible to identify the individual pile positions, but he was satisfied that the lengths provided were adequate:
• There were only 5 hard piles at 6.4 metres, which is good for 2.75 metres depth, and approaches the maximum depth of 3.0 metres.
• All the other hard piles are 9.0 or 9.4 metres, which is good for 4.0 metres depth, and so comfortably more than what was required.
• The soft piles range from 3.0 to 4.25 metres and are generally at least 0.5 metres deeper than the retained height.
32. The site engineer’s comments do not seem to me sound evidence that the pilings did not meet the design standard. Rather, it seems likely to me that this was a simple comment that the hard pilings would be roughly half underground. I note in this regard that piling design report refers to (at the stated excavation depths) the following percentages of the hard piles being underground: 1.5m (62.50% underground); 2.5m (58.33%); 4.0m (56.25%), 9.0m (55.56%). Given this, I see no significant discrepancy with the site engineer’s alleged comments.
33. As to the planning officer’s comments, I note that the great majority of the hard piles are 9.0 to 9.4 metres, more than the 8.0 metres to which Mr D has referred.
34. I see no fault in the way the Council considered the design and suitability of the retaining wall. Although the Council cannot identify the location of each individual pile, the depths either meet or exceed those in the design guide, and the Council’s calculations indicate that the wall would meet the standards required.
35. Mr D may disagree with the Council’s view that the retaining wall is not covered by the Regulations but, even if that were to be the case, I consider that the Council has taken reasonable steps to check whether the wall would comply. In any event, it remains the primary responsibility of the developer to comply with the Regulations.

Piling log sent to the developer

36. Mr D has also raised concerns that the Piling Company chose to send the piling log to the Developer rather than sending it to the Council at the same time.
37. The actions of the Piling Company and the Developer are not within the Ombudsman’s jurisdiction. However, it is unsurprising that the Piling Company would choose to forward its calculations to the Developer (as its client).

Back to top

Final decision

38. I have closed my investigation into Mr D’s complaint because I have found no fault in the way the Council investigated his concerns about the retaining wall.

Back to top

Investigator's decision on behalf of the Ombudsman