The Ombudsman's final decision:
Summary: Mr F complains the Council failed to take effective action in relation to a flue installed at his neighbour’s home which contravened the Building Regulations. The Ombudsman has found fault causing injustice.
- Mr F complains the Council failed to take effective action in relation to a flue installed at his neighbour’s home which contravened the Building Regulations.
- Mr F says the flue discharges fumes into his garden affecting his enjoyment of the garden and has delayed him building a rear extension.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries and:
- Building Act 1984
- Building Regulations 2010 Part J
- The Gas Safety (Installation and Use) Regulations 1998
What I found
- Councils have a general duty to enforce Building Regulations. In line with Government guidance, councils usually seek to do so by informal means. If that does not achieve compliance, under the Building Act 1984 councils may:
- prosecute the person carrying out the work in the Magistrates' Court where an unlimited fine may be imposed. Prosecution is possible up to two years after the completion of the offending work, but must be brought within six months of the date the council had enough evidence to justify bringing a prosecution.
- serve an enforcement notice on the building owner under section 36 of the Act, requiring alteration or removal of work which contravenes the regulations. If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner. A section 36 enforcement notice cannot be served later than 12 months from the date of completion of the building work.
- Councils must look into complaints about possible statutory nuisances under the Environmental Protection Act 1990. For something to be a 'statutory nuisance' it must either:
- Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
- Injure health or be likely to injure health
- The rules for installing combustible appliances are set out in the Building Regulations 2010 Part J. These say a flue outlet should be at least 600mm from a neighbour’s boundary when facing it, and 300mm from it when running parallel. It should be positioned so its combustion products do not cause a nuisance, for example it should not be positioned over an adjoining property.
- If a Gas Safe registered engineer installs a heat producing gas appliance they should provide a Building Regulations Compliance Certificate within 28 days. This informs the council of the new appliance and is evidence of compliance with Building Regulations. Non-notification of the installation to Gas Safe or the council is a contravention of building regulations.
- Installers may also leave a Gas Safety Record. The Gas Safety Record details what checks the engineer has carried out and if the appliances meet the appropriate safety standards. They do not confirm compliance with Building Regulations.
- In June 2016 Mr F’s neighbour installed a new gas boiler and flue. Mr F says the flue is situated on the side wall of a rear extension and encroaches into and points towards his garden. He says as a result, the boiler fumes discharge solely onto his property. The Council says it was a replacement boiler installed in the same position as the original and is located at a high level, on a section of the wall which is at an angle to the boundary.
- Mr F spoke to his neighbour, but when there was no change he reported the matter to the Council on 21 July 2016.
- An environmental health officer visited in August 2016. He found the flue was about 2.5 metres from any openable window and the steam/water from it was dripping onto the concrete foundation for the garden fence post. The environmental health officer decided there was no statutory nuisance in December 2016. The Council say the delay in the decision was caused by difficulty in accessing the neighbour’s property. The officer wrote to Mr F’s neighbour asking them to relocate the flue, but they refused. The officer told Mr F the positioning of the flue was governed by building regulations and it was the responsibility of building control to carry out enforcement action.
- Mr F contacted a local councillor in January 2017 who notified building control. The building control officer visited Mr F’s property unannounced in March 2017, but there was no one in. Mr F says he contacted the officer several times afterwards to re-arrange but received no reply.
- The officer visited again on 12 May 2017 and visited the neighbour’s property on 18 May 2017. The neighbour gave the Council a completed “landlord/home owner gas safety record” from June 2016. The officer noted the flue outlet was within 600mm of the boundary and said he would investigate further and consider whether any action could be taken. I have seen no evidence he did so.
- Mr F sent numerous e-mails requesting an update on progress between May 2017 and August 2017, but received no response.
- The Council says it decided not to take enforcement action after considering the environmental health officer’s decision, the gas safety report, and a clause in the building regulations that “smaller separations to the boundary (than 600mm) may be acceptable for appliances that have been shown to operate safely with such separations from surfaces adjacent to or opposite the flue outlet”. I have seen no record of this consideration. Mr F says the clause was irrelevant in his case because the flue was encroaching onto his property causing all of the products of combustion to discharge onto his property, causing a nuisance.
- Mr F asked a Gas Safe inspector to visit. The inspector’s report said the neighbour’s flue “appears to be sited in a manner that contravenes the minimum specified distances may cause its products of combustion to discharge over your property”. Mr F sent this to the Council and he again raised the matter with the councillor. In September 2017 the councillor told Mr F the Council would not be taking any enforcement action against the neighbour.
- Mr F made a formal complaint on 12 October 2017. The Council replied on 9 November 2017. It said, as Gas Safe had no record of installation, the Council was unable to pursue enforcement action as there was no evidence of the date of installation.
- The response also set out the time limits on when a council may take enforcement action. It said prosecution must be brought within six months of the building control officer’s visit in May 2017. The case had again been referred to environmental health for consideration.
- The building control manager visited Mr F’s property again on 24 November 2017. The officer said the flue contravened building regulations and he would ask the legal department to consider whether prosecution was possible. Mr F continued to chase the matter until January 2018.
- Between February 2018 and April 2018 there were internal discussions with the Council’s legal department about whether prosecution was possible. In April 2018 the officer told Mr F the Council was unable to take enforcement action as the time period had expired. He would ask the legal department about serving an injunction on the neighbour. Mr F says he chased the officer at the end of May 2018 and was told the he still awaited legal advice. Mr F complained to the Ombudsman.
- In response to my draft decision, the Council said it decided not to pursue an injunction as it was not in the public interest. I have seen no record of that consideration.
- The Ombudsman’s role is not to determine whether something is a breach of building regulations. However, in this case the Gas Safe inspector has said the flue appears to breach the regulations, the building control officer has noted the flue is within 600mm of Mr F’s boundary, and the building control manager considered it a breach.
- When Mr F reported the flue to the Council in July 2016 the matter was dealt with by environmental health. It is not clear to me why it was not referred to building control at that point.
- The environmental health officer visited in August 2016, but it took until December 2016 for him to decide there was no statutory nuisance. I appreciate there were difficulties gaining access to the neighbour’s property, but I have seen no evidence explaining the delay in progressing the investigation. I therefore find fault.
- Building control were notified of the issue in January 2017. There is evidence the officer tried to visit in March 2017, but it took until May 2017 to re-visit the property. I have seen no evidence explaining this delay and find it to be fault.
- At the visit, the officer identified the flue was within 600mm of Mr F’s boundary. At this point the Council should have considered whether to take enforcement action against the neighbour. It had evidence the flue was installed in June 2016 and was a breach of building regulations. This means it could have served an enforcement notice against the neighbour under Section 36 of the Building Act 1984. It also had until November 2017 to start prosecution action.
- However, I have seen no evidence of any further investigation or of proper consideration whether to take enforcement action. I have seen no evidence a decision not to take enforcement action was properly taken. This is fault.
- The Council has discretion whether to use its building regulation enforcement powers. I therefore cannot say the Council would have taken enforcement action or what the outcome of that action would have been. Nor can I say it was fault not to serve an enforcement notice or to prosecute.
Did the fault cause injustice to Mr F?
- Primary responsibility for ensuring building work is in line with building regulations rests with those who commission it and those who do the work. I realise Mr F says the flue has impacted on his enjoyment of his garden and affected his ability to build a rear extension, but I must consider that it is Mr F’s neighbour’s actions, not the Council’s actions, that have caused this. I must also consider that the flue is not causing a statutory nuisance.
- The delays in the environmental health and building control investigations, and the failure to properly consider whether to take enforcement action, mean it is now too late for the Council to serve a notice on the owner of the property requiring him to rectify any breaches of Building Regulations. It is also too late to prosecute in the Magistrate’s Court.
- This has caused Mr F uncertainty, as he does not know whether enforcement action may have been taken or whether the position or location of the flue may have been changed. Mr F has also been put to unnecessary time and trouble chasing the Council from August 2016 to May 2018.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. If this is not possible, we may recommend a payment to acknowledge the impact of the fault.
- Within a month of my final decision, the Council has agreed to:
- Apologise to Mr F for the faults identified.
- Pay him £250 to acknowledge the time and trouble he has been put to.
- Consider whether to apply for an injunction to compel the building owner to undertake specified works to rectify a breach of building regulations.
- If the Council decides not to apply for an injunction, it should discuss the matter with the neighbour to see if a solution is possible, and offer to contribute to the cost of rectifying the problem.
- Reassess whether or not the products of combustion constitute a statutory nuisance under section 80 of the Environmental Protection Act 1990.
- The Council delayed in dealing with Mr F’s report that his neighbour’s flue breached building regulations. It also failed to properly consider whether to take enforcement action. This fault has caused injustice to Mr F.
- The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman