Summary: There was fault by the Council. It did not accept evidence that an outbuilding needed building regulation approval until the complainant had had to complain on several occasions, including the formal complaints process. An apology from the Council, the regularisation of the outbuilding and a payment of £100 for time and trouble seems a satisfactory remedy, subject to further comments.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council has not taken enforcement action where building regulation approval has not been sought for an outbuilding where the eaves is closer than one metre to a boundary.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I read the papers put in by Mr B and discussed the complaint with him.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. I gave the Council and Mr B the opportunity to comment on my draft decision.

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What I found

7. Mr B contacted the Council with his concerns about an outbuilding put up by a neighbour. The timber outbuilding is at the bottom of the neighbour’s garden, with Mr B’s house side on to the outbuilding.
8. The Council visited the site and wrote to the neighbour asking for more information. The letter said that to be exempt from building regulations, the structure should have a floor area of less than 30m2 and be no less than one metre from the boundary. Otherwise, it should be constructed substantially of non-combustible material.
9. The building control surveyor visited the site and wrote to Mr B and the neighbour on 3 October 2017. He said that as the outbuilding was one metre from the boundary, it was for storage and 19m2, the outbuilding was exempt from building regulations.
10. Mr B replied on 10 October. He said that as the eaves were closer than one metre from his boundary he intended to contact a government minister with his concerns about the spread of fire.
11. Mr B received a reply from the government minister on 24 November 2017. This said measuring one metre should be from the point of the outbuilding nearest the boundary, not necessarily the main wall. Mr B sent this document to the Council on 29 November 2017.
12. The building control surveyor wrote to Mr B on 8 December 2017 to say that he was consulting with colleagues at other councils and with Local Authority Building Control and would tell Mr B of any decisions when he had further information.
13. The Building Control Surveyor wrote to Mr B on 26 January 2018. This letter said the Council’s view was that the distance from the wall of the outbuilding to the boundary of one metre was enough. So, the Council would not take further action. It said that although the overhang of the roof reduced the minimum distance, it would appear not to significantly increase the risk of fire spread to Mr B’s property.
14. Mr B made an official complaint to the Council. The Council replied to the stage 1 complaint on 9 February 2018. The Council did not uphold the complaint.
15. The Council did not uphold Mr B’s stage 2 complaint on 28 February 2018. This was because the Council said its building control team was still working to ensure Building regulation compliance. The Council said its building control team had now changed its interpretation in line with the letter from the minister.
16. The neighbour put in a regularisation application on 5 September and the Council issued a completion certificate to regularise the works (including fire retardant paint) on 24 September 2018.
17. The Council has clarified the neighbour has painted the inside walls of the outbuilding with fire retardant paint and the owner intends to paint the outer walls soon. The roof, which is rubber coated wooden plyboard with wooden joists has no fire retardant paint.

My analysis

18. Mr B says the plans show the outbuilding at an incorrect distance from his boundary, a difference of about 10cm.
19. The drawing says the measurement is approximate. Council officers have visited the site so they could see the exact distances on site rather than from the plans. So, I find no fault on this point.
20. Mr B complained the Council had not interpreted the building regulations correctly. Mr B was correct and the Council has now accepted the government ministers view was correct.
21. Council Officers worked with the neighbour to regularise the outbuilding and the Council has now issued a completion certificate.
22. Mr B says the information supplied by the Council suggests it issued the compliance certificate because the neighbour had treated the timber structure with 'fire rated paint'. Mr B says that such paints and coatings are fire retardant, however, they do not make the applied surface 'non-combustible'.
23. Mr B says the regulations are clear, that given the close location to his property only a 'building constructed substantially of non-combustible material' is allowable. I do not agree this is the case, for an outbuilding to be exempt from building regulations it has to be constructed substantially of non-combustible material. As the outbuilding is not exempt from building regulations, this test does not apply. Instead, the owner has sought a building control regularisation certificate.
24. The Council’s response has confirmed the neighbour has treated the timber walls of the shed with fire retardant paint. The underside of the roof has not been coated and the Council has said that ‘there is no requirement for the roof to be fire resistant from the inside, which includes the overhang. The fire safety provisions are principally concerned with the performance of roofs when exposed to fire from the outside i.e. spread from adjoining buildings and so it considers the structure complies with the building regulations on this point’.
25. I understand Mr B’s concerns about fire safety. I have looked at the building regulations and the information sent to me by the Council which explains how officers considered the application for a regularisation certificate for the outbuilding. I cannot share all the details with Mr B as some of the information is confidential. But, after considering all the information, I do consider the Council’s decision on the regularisation certificate was without fault. The Council officers considered all the information from the applicant, the fire safety data on the paint, the distances on the site and the building regulations before making a decision. I appreciate Mr B may disagree with the decision, but it was a decision the officers were entitled to make
26. Mr B was put to some time and trouble, writing to the government minister and it took from December 2017 until February 2018 (3 months) for the Council to accept the outbuilding needed building regulation approval. It then took till September 2018 (7 months) for the Council to tell Mr B that it had issued a completion certificate.
27. There was fault by the Council. Once the government minister told the Council of the correct interpretation of the building regulations, it took 3 months and Mr B making an official complaint for officers to accept the outbuilding needed building regulations approval. This period of time was over Christmas and I can appreciate it took some time to decide, so I am not convinced there is significant delay. But, I do consider that Mr B should not have had to make an official complaint for the Council to agree with the minister’s interpretation.
28. I appreciate the Council could not control how long it took for the neighbour to put in a regularisation certificate and comply with the building regulations. However, I am aware that during the 7 months Mr B suffered uncertainty over what would happen.
29. I do consider the Council should apologise properly for the effort Mr B went to when pursuing the matter. In this case, as Mr B was put to time and trouble in pursuing the complaint, after the government minister confirmed the correct interpretation, I consider a financial remedy of £100 is suitable. The Council has already confirmed it has changed its interpretation in line with the government ministers letter and has passed the information on to other local councils.

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Agreed Remedy

30. The Council should apologise to Mr B within 6 weeks of the date of this decision.
31. The Council should pay Mr B of £100 towards his time and trouble in pursuing the complaint within 6 weeks of the date of the decision.
32. The Council should ensure that all officers are aware of the correct interpretation of the building regulations on this point. (This part of the remedy is already complete.)

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Final decision

33. I have completed my investigation of this complaint. This complaint is upheld as there was fault by the Council. I am satisfied the action the Council proposes to take is sufficient to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman