Summary: Mr X complained about the way the Council dealt with building control matters for his extension and planning matters relating to his neighbour’s extension. Mr X says the Council caused him stress and inconvenience. We found no fault in the way the Council dealt with building control matters and no injustice was caused by the Council in the way it dealt with other matters.

The complaint

1. Mr X complains the Council:
• failed to properly use its building control powers when it dealt with the builder (his neighbour) who built a ground floor extension on the rear of his house. He says that, because of this, he suffered costs rectifying poor work and moving a wall that had been built on the builder’s land;
• did not act fairly in its dealings as a building control authority between Mr X and the builder;
• did not apply its 45-degree ‘rule’ properly when approving the neighbour’s planning application for first floor rear extension;
• has failed to take effective enforcement action against a number of properties in his street; and
• took too long to respond to his complaints.
2. Mr X says the Council caused him stress and inconvenience.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

How I considered this complaint

5. I read the complaint and invited Mr X’s representative to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I discussed the complaint with a senior planning officer and a building control officer.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning officers should consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ’45-degree rule’. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. They will often consider any development beyond 45 degrees as likely to be unacceptable. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities.
10. A habitable room is a room that is living room, dining room or bedroom. Kitchens, utility rooms, bathrooms, landing or hallway rooms are not usually considered to be habitable rooms.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Building regulations control

12. Most building work requires Building Regulations approval. The regulations set standards to ensure the health and safety of those people in or around buildings. The developer, owner or occupier of buildings, their builders and other agents may be held responsible to ensure safe standards are met.
13. Building regulations approval may be given by Council Building Control Officers (BCOs) or independent Approved Inspectors. Only councils may take enforcement action where regulations are breached.
14. Building regulations approval may be:
• with full plans, where building work is checked for compliance with the regulations on site against the plans;
• with a building notice, where notice of work is given before it begins and the work is checked (without plans) by the BCO or Inspector at various stages.
15. The BCO or Inspector’s role is simply to check compliance with regulations. They are not a ‘clerk of works’ and are not responsible to the developer when things go wrong. They may, at their discretion, give advice to anyone who requests it.
16. A building regulations approval is not a guarantee. Losses caused by faulty works including failure to follow the regulations, is likely to be a question of contractual responsibility between the parties (usually the owner and builder) and so ultimately resolved in the civil courts.

What happened

Building control

17. I invited Mr X’s representative to talk to me, partly to get an understanding of the background of the complaint, but this did not happen. A BCO has given me a summary of the background of the complaint. The BCO told me his understanding of what happened, and it is as follows.
18. Mr X wanted to build a ground floor extension and his neighbour offered to build it for him. After the work was underway, Mr X noticed one wall of the extension was built just over the boundary, on the neighbour’s land. Later, the neighbour submitted plans for a first-floor extension, and it seems his intention might have been to use one wall of Mr X’s property to build this extension.
19. The builder, on behalf of Mr X, submitted a building notice application, without plans. The Council’s BCO was asked to inspect the building at various stages to check for compliance with building regulations.
20. The BCO said that, although the quality of the building work was not perhaps the best, there were just a small number of building regulation issues that needed to be addressed, such as:
• guttering;
• waterproofing of roof verges;
• filling gaps with mastic;
• fixing sink downpipes properly to the wall.
21. The BCO understands that Mr X was unhappy with the neighbour’s work and employed another builder to finish the extension. The BCO says he thinks this builder moved the wall on the neighbour’s land, back onto Mr X’s land.
22. Mr X believes the Council should have done more to protect him from the actions of his neighbour, who had begun work on Mr X’s ground floor extension. Mr X says the Council gave advice to the builder, but did not inform him of the details of the conversations. He disagrees that the Council only found minor problems, and says that some posed serious threats to the safety of the building.
23. The Council is now satisfied with the work to Mr X’s ground floor extension as it relates to building works and has issued a building regulations completion notice.

Planning control

24. The neighbour subsequently sought and was granted planning permission for his own first floor extension. Mr X objected to the Council that his amenity would be affected, particularly in terms of loss of light and overbearing impact on the bedroom at the back of his house.
25. I read the case officer’s report for the neighbour’s application. The case officer considers Mr X’s concerns and in relation to the impact on his amenity, he assesses the neighbour’s first floor extension against the Council’s supplementary planning guidance (SPG). The SPG includes an explanation of how the Council applies the 45-degree ‘rule’. The guidance says:

‘Where any neighbour’s house has habitable room windows facing or adjacent to an extension:

• Two storey extensions should not normally project behind a 45 degree line taken from the edge of the nearest habitable room window of any adjacent house.’
1. The SPG says that single storey extensions to terraced or semi-detached houses should not normally exceed 3 metres in depth.
2. In his report, the case officer says that both Mr X and his neighbour already have single storey extensions, and this therefore ensures that the new first-floor extension will not:
• extend beyond the 45-degree line taken from the neighbour’s ground floor habitable room windows; or
• the first-floor habitable room window of Mr X’s home.
3. The senior planning officer I spoke to explained his understanding of the case officer’s analysis. He said that because the Council normally allows 3 metre rear extensions, regardless of any breach there might be of the 45-degree line, the case officer applied the same reasoning here, as the circumstances were similar, i.e. first-floor habitable room windows of both properties looked out over ground floor extensions.
4. The senior planning officer sent me a photo taken by the case officer during a visit. It shows that Mr X’s home is significantly higher than the neighbours, by nearly a metre. The senior planning officer said the nearest window is small and would appear to serve a bathroom, which is not a habitable room. He said the window to what he thought was a bedroom on Mr X’s first floor, is further away, too far to breach the 45-degree line.
5. Mr X says the nearest window serves the first-floor landing, not a bathroom. A landing room or hallway is not a habitable room.

Other matters

31. Mr X complained the Council was inconsistent in the way it takes enforcement actions in relation to planning and building control matters in his street. The Council did not provide detailed comments relating to other properties in the street, but stated it treats each development or allegation on its ‘merits’. This means that it considered each application against the local policies and other relevant considerations.
32. Mr X complained about the quality of the Council’s response to his formal complaint and that it took longer than it should have to respond.
33. The Council had already apologised for delay in responding to Mr X’s complaints through the first two stages of its complaint procedure.

My findings

Building control

34. Mr X believes the Council should have done more to protect him from the actions of his builder, but that is not its role.
35. The Council was not responsible for the actions or quality of the builder’s work. Responsibility for compliance with building regulations lies on the builder and landowner. We do not expect councils to act as a guarantor of last resort when there are problems between builders and their customers. Resolutions to civil disputes are ultimately settled in the civil courts, not by councils.
36. The Council, as a building control inspection authority, gave advice and inspected the building to satisfy itself that building regulations were met. It followed the process we would expect and so I find no fault.

Planning control

37. I have read and reread the case officer’s analysis as it relates to Mr X’s amenity and the application of the 45-degree ‘rule’ and do not find his explanation clear.
38. However, the case officer clearly does say the 45-degree line is not breached. Having looked at the photo sent by the Council, listening to the senior planning officer’s explanation and knowing the internal layout of Mr X’s home, this part of the case officer’s judgement is correct.
39. So, while a part of the officer’s report is unclear, I cannot say this affected the outcome of the Council’s decision or had any meaningful impact on Mr X. A minor or technical fault such as this does not justify a finding of fault in the decision-making process.

Other matters

40. Mr X thinks the Council has dealt with building control and planning matters differently in other houses in his street. We do not usually investigate complaints relating to the Council’s decisions on other properties, unless we have evidence to show they cause a direct impact on the complainant. We are not a planning appeal body, so do not decide whether judgements or decisions are correct or not. Because of this, we rarely investigate allegations of inconsistency in the way these decisions are made. It is the decision-making process we focus on, not the judgements made within the decision-making process.
41. We rarely investigate complaints about complaint processes, either. This is because, where we are unable to deal with the substantive issue of the complaint, it is not generally considered a good use of public resources to investigate complaints about complaint procedures.

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Final decision

42. I completed my investigation because there was no fault in the way the Council dealt with building control or planning matters.

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Investigator's decision on behalf of the Ombudsman