Summary: Mr X complains the Council has failed to carry out proper inspections or take appropriate action in relation to an unauthorised loft conversion and extension of the shared chimney at an adjoining property. The Council’s failure to consider/ record its consideration of whether the works to the chimney complied with the building regulations amounts to fault. This fault has not caused Mr X or his brother a significant injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council has failed to carry out proper inspections or take appropriate action in relation to an unauthorised loft conversion and extension of the shared chimney at an adjoining property. Mr X is concerned the work breaches the building regulations and is unsafe.
2. Mr X also complains the Council failed to deal with his complaint properly, or in a timely manner.

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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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments. I have considered Mr X’s comments.

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What I found

6. Most development needs planning permission from the local council. But, the law allows some, usually minor, changes to houses without council approval. This is ‘permitted development’.
7. If someone carries out development without planning permission then the Council should investigate to decide if it should take any action. When the Council receives a complaint it will carry out a site visit to establish whether the development does require planning permission. If it does then it has to decide what, if any action, to take. Councils are not required to take formal enforcement action in relation to each and every breach of planning control, but must consider whether it is expedient to do so.
8. If the Council decides there is a breach of planning control, and it is expedient to take action it can issue an enforcement notice. Enforcement notices are served on the owner and on the occupier of the land to which the breach relates.
9. If the developer submits a planning application, as often happens, for the work done and any further work proposed the Council then has to consider it in the normal way. It cannot be prejudiced against the application just because it has been made retrospectively.

Building Regulations

10. 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.
11. Primary responsibility for building work rests with those who commission it and those who carry the work. When carrying out their functions, councils will visit at various stages but they will be not be present for the great majority of the project and do not act as a ‘clerk of works’. When a council is satisfied, after taking 'all reasonable steps' that the Regulations have been met, they must issue a completion certificate.
12. 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 councils have two formal enforcement powers which they may use in appropriate cases. They may:
• prosecute the person carrying out the work in the Magistrates' Court where an unlimited fine may be imposed.
• serve an enforcement notice on the building owner under section 36 of the Building 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.
13. Enforcement action is discretionary and so it is up to the judgment of council building control officers whether and how to enforce the regulations. The Government advises councils that enforcement powers should only be used if a breach causes, or is likely to cause, significant harm or risk of harm.
14. Damage to a neighbour’s property by building work would normally be a civil matter between the two neighbours. If work takes place at or near the common boundary of the properties it is possible a Party Wall Act Agreement should have been made between the neighbours. A council has no part to play in this agreement. It is a civil matter between the neighbours.

Key facts

15. Mr X lives with his brother, in a property his brother owns. In April 2018 Mr X contacted the Council to raise concerns about building works at his neighbour’s property. Mr X was concerned their neighbours were not adhering to the party wall agreement and had carried out work to the shared chimney without his brother’s permission. During the works, rubble had fallen down the chimney into their fireplace. He was concerned the flue may be blocked and that they had been advised not to use his gas fire.
16. The Council confirmed Mr X’s neighbours had applied for building control approval for the loft conversion and that an officer would investigate the works to the chimney.
17. A building control surveyor, Officer 1 visited the site and discussed the works with the builder. The builder confirmed they had raised the chimney above the flat roof to the loft conversion to comply with the building regulations. Officer 1 advised the builder they should have sought Mr X’s permission to alter the chimney. Officer 1 then wrote to Mr X advising that raising the chimney by a few courses would not affect the structure. Officer 1 also confirmed the chimney was acceptable.
18. The development control manager, Officer 2 also wrote to Mr X confirming the chimney structure was structurally sound and the appearance of the raised chimney was likely to be acceptable.
19. Mr X was not satisfied by the Council’s response. He did not consider the Council had properly considered the extended chimney stack. He disputed the Council’s reference to an increase of a few courses of bricks and noted the builder had raised the chimney stack by thirteen courses. He also questioned how the Council had assessed whether the chimney was structurally sound.
20. Another building control surveyor visited the site on 10 May 2018. As there was scaffolding in place, the officer was unable to inspect the chimney.
21. Mr X wrote to Officer 2 on 15 May 2018, raising further concerns about his neighbour’s loft extension. The works had damaged his brother’s roof; was outside the scope of permitted development; and did not comply with building regulations in relation to the combustible material installed around the chimneystack. Mr X believed there was more than a minor technical infringement and asked the Council to take action to address these issues.
22. Officer 2 confirmed he would review the matter and decide whether there was a breach that warranted enforcement action either under building control or planning regulations.
23. The Council’s records show Officer 2 asked for an update, and Officer 1 commented:
• The extension of the chimney stack, extension of replacement roof tiles at the front of the property, and the building the loft extension up to the outer face of the rear wall were all outside permitted development rights. These were not building control issues.
• The height and width of the chimney complied with the building regulations.
• Combustible material installed around the chimneystack without the required 40mm gap would be a breach of the building regulations. The builder should ensure no timbers are within 40mm of the chimney and provide photographic evidence this has been achieved or a site inspection should be arranged.
24. A building control surveyor visited the site on 15 June 2018 but was unable to gain access. He later spoke to the builder who confirmed there was a clearance of a minimum of 50mm between the chimney and any timber and that the works had been covered up and were no longer exposed. The Council did not request any evidence of the clearance between the chimney and timber works or ask for the works to be exposed.
25. Mr X made a formal complaint about the way the Council had responded to his concerns. Officer 2 responded setting out the action officers had taken. Officer 2 had visited the site on 13 June 2018 but been unable to gain access or carry out a full visual inspection.
26. Officer 2 confirmed Officer 1 had inspected the chimney stack and was satisfied it was structurally sound. The height and width complied with building regulations. In relation to Mr X’s concerns about combustible material Officer 2 advised the building regulations are not prescriptive and allow for on-site interpretation. For example, if the chimney is no longer functioning with a real fire, it can be interpreted that this aspect is no longer as crucial.
27. In addition, Officer 2 confirmed the building regulations did not cover the standard of building works. It was sufficient for building control purposes for the roof to be watertight.
28. Officer 2 also confirmed that in planning terms raising the chimney would not harm visual amenity or justify enforcement action. Nor would the replacement roof tiles on the front elevation. Officer 2 advised Mr X that if he had taken the view planning permission was required, and that enforcement action was expedient, the Council would serve an enforcement notice on Mr X’s brother, as owner of the location of the breach.
29. In relation to the dormer, Officer 2 said it was unclear whether was permitted development, and officers were still investigating the matter.
30. Mr X did not accept Officer 2’s explanations and asked for his complaint to be considered further. He was also concerned about the suggestion his brother could be held responsible for the breach of planning control and be subject to enforcement action.
31. The Council considered Mr X’s request and advised it had not properly assessed his initial complaint. The Council stated that not all the issues Mr X raised should have been accepted under the complaints process. The discrepancies regarding the building work should have been passed to the planning team as the complaints process is not the appropriate route to resolve such issues. It apologised for any inconvenience caused and suggested the complaint response should only have focussed on Mr X’s concerns about delay in responding.
32. Mr X considered the Council’s response was unacceptable, and an attempt to frustrate his legitimate complaint. He reiterated his concerns and asked for his complaint to be considered at stage two of the Council’s complaints process.
33. The Council acknowledged Mr X’s request in early July 2018 and responded in late September 2018. It apologised for the delay in responding. The Council concluded it had responded to Mr X’s reports about the chimney stack and roof tiles issues within reasonable timeframes. These issues were classified as Category B and the first inspection for such issues should take place within 10 working days. In this case, Officer 1 visited the next working day.
34. Officers had attempted to inspect the dormer but this had not been possible. Mr X’s neighbour had now made an application for a certificate of lawful development which the Council has considering. While the issue of the dormer was outstanding, the Council had exercised discretion in relation to the chimney stack and roof tiles. The Council considered they were acceptable and would not take enforcement action.
35. The Council subsequently refused Mr X’s neighbour’s application for a certificate of lawful development.
36. Mr X was unhappy with the way the Council dealt with his complaint and asked the Ombudsman to investigate. In response to my enquiries the Council has confirmed that the building control team believe the works around the chimney stack in relation to combustible materials are compliant and it will not take any enforcement action.
37. The Council states the building regulations are imposed where possible, however there is some flexibility in their interpretation to allow for specific situations. In this instance fire safety is the key issue. There is no real fire in place, and the regulations can be interpreted with regard to the actual situation on site. The Council asserts that if Mr X was to reinstate a real fire it is highly likely he would need to insert a lining as the internal chimney will have degraded over time. This would require building control or third party approval. The Council also notes that real fire use is restricted in smoke control zones such as London. Mr X could install an exempt device such as a wood burner, but this would also require a chimney lining to be installed.
38. At the time of responding to my initial enquiries the Council had not issued a completion certificate for the loft conversion as there were outstanding works.
39. In relation to Mr X’s complaints, the Council states Mr X made several complaints, and there was some confusion about the remit of the complaints process. It states Mr X’s initial complaint was about the Council’s failure to respond to his queries about his neighbour’s works. Mr X’s complaint at stage two disagreed with the responses provided relating to the building work, not the delay in getting a response. The Council advised its stage two investigation would review whether it had followed the correct process in investigating Mr X’s report of breaches. It would not review whether enforcement action should be taken. The Council acknowledges there was a delay in issuing the stage two response.
40. Mr X has responded to the draft decision and reiterated concerns about the way the Council had carried out its planning and building control functions. He maintains the works to the chimney and roof extension were not covered by permitted development rights and were therefore unauthorised. Mr X asserts the Council should have acted in a timely manner and taken enforcement action.
41. Mr X also questioned the efficacy of the Council’s building control inspections. On several visits officers were unable to inspect the work either because they could not gain access, or because there was scaffolding in place. Mr X queries how the Council established the chimney stack was structurally sound without inspecting it, and questions whether it had structural calculations for the extended chimney stack.
42. In addition, Mr X also maintains there is not a 40mm gap between the chimney stack and combustible material. He provided the Council with photographs showing the ply wood shell and tiling battens for the roof pressed against the chimney stack. Mr X asserts the Council should have asked for this work to be opened up for inspection, rather than accept the builder’s word there was a gap of 50mm between the chimney and any timber.
43. Mr X disputes the Council’s assertion that it can interpret the building regulations flexibly as his brother does not currently use the fire place for a real fire. He considers the Council was wrong to make assumptions about the existing or future use of the fire place. Mr X also disputes that relining the chimney would satisfy the building regulation requirements and allow him to use a real fire.
44. More generally, Mr X is concerned the Council does not have a local enforcement plan and that it only takes formal enforcement action in a small percentage of building control cases.
45. Mr X has also reiterated his concerns about the way the Council dealt with his complaints. He maintains the Council tried to exclude his concerns about whether the Council has followed the correct processes and procedures, when it should have considered his complaint in full.
46. During the course of my investigation Mr X’s neighbour applied for, and the Council has now granted planning permission for the retention of the roof extension and chimney stack. The Council has also now issued a building control certificate for the loft conversion.

Analysis

47. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made.
48. The Council has investigated Mr X’s concerns about his neighbour’s breaches of planning control. It acknowledged there were breaches of planning control in relation to the new chimney stack and the roof tiles but did not consider it expedient to take enforcement action. This is a decision the Council was entitled to reach.
49. Had the Council decided there was a breach of planning control and that it was expedient to take action, the Council could have served and enforcement notice on Mr X’s brother. Mr X disputes this, but as it is a shared chimney and the roof tiles extended on to Mr X’s brother’s property, the Council would have needed to serve the notice on Mr X’s brother and their neighbour as owners.
50. The Council identified that the loft conversion did not meet the permitted development requirements and was therefore unauthorised. It has now granted planning permission for the retention of the chimney stack and roof extension, so there is no longer a breach of planning control.
51. The Council has also considered Mr X’s concerns about breaches of the building regulations and determined the works are compliant and it will not take enforcement action.
52. The Council’s inspection records suggest the Council has reached this view even though it has not been able to properly inspect the chimney extension. Officers visited several times, but were either unable to gain access to the property or could not view the chimney because scaffolding was still in place.
53. The Council has not provided any measurements or structural calculations for the extended chimney. And officers’ references to an increase of a few courses of bricks also suggests they were unclear about the extent of the extended chimney.
54. Nor has the Council provided evidence that there is the required 40mm gap between combustible material and the chimneystack. Officer 1 was clear in his view that a failure to ensure there was a 40mm gap would be a breach of the building regulations. And suggested the builder should provide photographic evidence of the required gap or officers should inspect the works. But the Council has not pursued this. It has accepted the builder’s assurance there is a 50mm gap without any evidence in support.
55. On the basis of the information currently available I consider there was fault in the way the Council considered/ recorded its consideration of whether the works to the chimney complied with the building regulations.
56. Having identified fault, I must consider whether this has caused Mr X or his brother an injustice which the Ombudsman is able to redress. In this case, notwithstanding the fault, I consider the outcome would have been the same.
57. Approved document part A of the current Building Regulations states that where a chimney is not adequately supported by ties or securely restrained in any way, its height if measured from the highest point of the intersection with the roof surface, should not exceed 4.5 times the width, provided the density of the masonry is greater than 1500kg/m3. Although the Council has not provided measurements for the chimney, photographs of the chimney suggest it would meet the height and width requirement.
58. The Council states it has flexibility in the interpretations of the building regulations as the chimney is not currently functioning with a real fire. The Council also suggests that Mr X would in any event need to carry out additional work to line the chimney if he wished to use it for a real fire or wood burner. In these circumstances, it would not take enforcement action
59. As set out above, the Council has a general duty to enforce the building regulations. There is no requirement to take enforcement action, it is for officers to decide whether this is necessary. Mr X disagrees with the Council’s decision, but it is a matter of the officers’ judgement based on the current, rather than a hypothetical future situation.
60. Mr X is concerned the work to the chimney stack was carried out without his brother’s permission and that falling rubble has damaged the flue preventing them from using their gas fire. This is a civil matter between Mr X and his neighbour, as is any damage caused during the works to his rooftiles. The Council has no role in these civil issues.
61. The Council has responded to Mr X’s complaints. It acknowledges there was a delay in responding and has apologised for this. Mr X believes there was a concerted effort by the Council to deliberately frustrate his complaint. There is no evidence of this. Although there was some confusion in the complaints process, the Council has responded to Mr X’s concerns.

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Final decision

62. The Council’s failure to consider/ record its consideration of whether the works to the chimney complied with the building regulations amounts to fault. This fault has not caused Mr X or his brother a significant injustice.

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Investigator's decision on behalf of the Ombudsman