Summary: Mrs X complains a building control officer wrongly advised that the proposed extension to her property should have a raft foundation. The Council’s requirement that Mrs X build her extension with raft foundations even though the precise ground conditions were unknown amounts to fault causing an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains a building control officer wrongly advised that the proposed extension to her property should have a raft foundation. Mrs X relied on this advice and incurred additional expense. Another building control officer subsequently advised a raft foundation was not necessary.

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The Ombudsman’s role and powers

2. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• sent a statement setting out my draft decision to Mrs X and the Council and invited their comments. I have considered the Council’s response.

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What I found

5. Most building work will need building regulations approval. The regulations set standards for the design and construction of buildings to ensure the safety of people in and about the building. Building Regulations approval can usually be obtained in one of two ways:
• With full plans: the applicant submits detailed drawings for approval. Building work is subsequently checked on site for compliance with the Regulations (not compliance with the approved plans).
• With a building notice: notice of commencement of building work is given prior to the commencement of work. The various stages of the work are then inspected and approved but no plans are checked.

What happened here

6. Mrs X obtained planning permission to build a single-story extension to the rear of her property. On 19 February 2018 her agent then made a full plans application to the Council for building regulation approval.
7. A building control surveyor (Officer 1) considered the application and discussed the historical known ground conditions in the area with the building control manager (Officer 2). Officer 1 then contacted Mrs X’s agent on 22 February 2018 and made the following comment:

“The ground conditions in this part of [Y Road} are notoriously bad. Previous excavations have been dug to depths of 2500mm prior to hitting decent load bearing soils. An engineered designed raft(ed) shall be more appropriate in this scenario.”

8. The Council rejected the building plans on 9 April 2018 as there was insufficient information to ascertain whether the works would comply with the building regulations.
9. Mrs X intrusted an engineer to design a raft foundation. Mrs X’s builder confirmed the extra work and materials for the raft foundation would cost an additional £3,860.
10. The builder began work on the extension and asked the Council to carry out an inspection. As Officer 1 was unavailable Officer 3 carried out the first site inspection on 8 May 2018. The notes of this inspection state:

“…steelwork to the raft was almost complete however the ground as excavated for the raft within the floor area and particularly the deeper toe of the raft appears compact, consistent light coloured granular based sub-soil with good load bearing capabilities.”

11. Mrs X states Officer 3 said the ground was good and they did not need a raft foundation. Mrs X contacted the Council as she was unhappy she had incurred the additional expense of a raft foundation unnecessarily. Officer 2 visited Mrs X and discussed the foundations with her and her builder.
12. Mrs X remained unhappy and made a formal complaint to the Council. Mrs X asserted that no other properties on her side of the road had required raft foundations. All other extensions had been built with standard foundations. Mrs X felt the Council had made an error in requiring a raft foundation and that it should reimburse the additional costs she had incurred as a result.
13. The Council’s response states that when building control surveyors assess works in areas where there is known or potential for poor ground conditions, it is right that they tell the applicant of this potential at the earliest stage. The Council acknowledges that Officer 1’s phrasing that a raft “shall be more appropriate” could have been better expressed as a raft “may” be more appropriate. But it suggests it is common at the early stages of an application for agents to challenge building control surveyor’s initial responses.
14. The Council noted the engineer’s plans stated the suitability of subsoils to support a raft foundation would be confirmed on site, but this was not done before the first site inspection. It also suggests that Mrs X’s agent, engineer and builder missed four potential opportunities to potentially remedy the situation. They could have:
• requested the Council make the raft requirement conditional until the builder was on site and the actual grounds conditions could be determined;
• requested a trial hole for the engineer to inspect and determine ground conditions before designing the raft;
• contacted the Council at the commencement of works so that an officer could have assessed the ground conditions before the steel reinforcement was set up for the raft; or
• contacted the Council earlier to question the need for a raft.
15. The Council states it is not its role to second guess the precise ground conditions on site. It is appropriate for the Council to assume the worst-case scenario, and it is for agents/ engineers / builders to explore any opportunities to reduce costs if ground conditions are better than expected.
16. While the Council does not consider it is responsible for the additional costs incurred, it has instructed building control officers to be careful in their use of language. It will be clearer with applicants and agents that where there may be uncertainties about the ground conditions, steps could be taken to minimise costs until the precise ground conditions are known.
17. Mrs X was unhappy with the Council’s response and asked for the matter to be considered further. Mrs X asserts Officer 1’s comments and the use of the phrase “shall be more appropriate” were clear instructions. Officer 1 could have made this requirement conditional but did not. Mrs X disputes there was an onus on her agent, engineer or builder to question Officer 1’s instructions.
18. In its response the Council states Officer 1 had advised on the expected ground conditions and the works needed to mitigate this, using their prior knowledge and experience. The building control department had knowledge of pockets of bad ground in the area. The properties also backed onto a major road and the previous use of the land meant it had potential for bad ground conditions. The Council states Officer 1’s comment on the raft foundation was advice, not a formal requirement.
19. As Mrs X remains dissatisfied with the Council’s response, she has asked the Ombudsman to investigate the matter. In response to my enquiries the Council states Officers 1 and 2 have worked in this area of the Borough for many years and were aware Mrs X’s road had in the past been found to have poor sub soil. The Council does not consider it is responsible for the additional costs of the raft foundation.
20. The Council’s response to the draft decision acknowledges that Mrs X is not a specialist and was reliant on professional advisors. It states it is common for there to be several separate visits and discussions with the Council’s building control surveyors during the development and construction of a project. As issues arise, solutions are discussed and agreed between the surveyor and the builder and/or the agent/ engineer. The surveyors often in effect play a role in the “design team” for the project.
21. The Council states its building control surveyors have a close and professional working relationship with Mrs X’s agent and engineer and that both accepted Officer 1’s advice at face value. It suggests this is because they accepted the ground conditions in this locality were such that a raft foundation was an acceptable solution to an anticipated issue with ground conditions.
22. In addition, the Council has reiterated that had Mrs X’s builder or agent notified the Council when work was due to commence, a surveyor could have attended the site and perhaps requested a trial hole to determine the actual ground conditions.

Analysis

23. Where an officer identifies a potential issue with proposed building works we would expect them to bring this to the applicant’s attention and offer appropriate advice. In this instance Officer 1, using their knowledge of the area and its potential for poor ground conditions, considered a raft foundation would be appropriate. This is a matter of the officer’s judgement and is a recommendation they were entitled to make.
24. However I am not persuaded that Officer 1’s comments to Mrs X’s agents were simply advice which Mrs X could chose whether or not to follow. Officer 1’s comments are direct and unambiguous: an engineered designed raft shall be more appropriate. Officer 1 does not invite any discussions about the potential ground conditions or suggest any action that could/should be taken to confirm the ground conditions. He does not caveat his comments in any way.
25. As Officer 1 could not be certain of the precise ground conditions at Mrs X’s property, I would have expected him to be more cautious in his comments.
26. The Council acknowledges Officer 1 could have phrased his comments better, perhaps using ‘may’ rather than ‘shall’. It has instructed officers to be more careful with their use of language and clearer about steps applicants could take where the precise ground conditions are unknown.
27. The Council’s requirement that Mrs X build her extension with raft foundations even though the precise ground conditions were unknown amounts to fault.
28. I recognise Mrs X had employed building professionals to assist her, but I do not consider the Council can absolve itself of responsibility by suggesting Mrs X’s agent, engineer or builder should have done more. The missed opportunities the Council refers to above would not have arisen if the Council had provided clear detailed advice on its concerns about potential ground conditions and Mrs X’s options.
29. Mrs X has followed the Council’s instructions and incurred the unnecessary expense of a raft foundation.

Agreed action

30. I recommended the Council apologise to Mrs X and reimburse the £3860 she has incurred in building an unnecessary raft foundation.
31. The Council has agreed to these recommendations and should take this action within one month of my final decision.

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Final decision

32. The Council's requirement that Mrs X build her extension with raft foundations even though the precise ground conditions were unknown amounts to fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman