Summary: Mr D complains the Council has failed to act on engineering works next to his home. The Ombudsman has discontinued the investigation. There is no evidence any action by the Council has caused Mr D injustice, and if his property suffers any damage in future it would be reasonable for Mr D to pursue a legal claim against his neighbour. Further investigation could not achieve any worthwhile outcome for Mr D.

The complaint

1. Mr D complains the Council:
• failed to act on engineering works that were less than 3m from his foundations
• has acted fraudulently and unscrupulously
• did not properly investigate his complaint and the same person responded at Stage 1 and Stage 2
2. Mr D wants the Council to commission an independent report to assess whether his foundations have been damaged or are at risk.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6), as amended)

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I spoke to Mr D about his complaint and considered the information he sent and:
• The Building Regulations
• The Planning Portal
• The Party Wall Act 1996
6. I sent Mr D and the Council my draft decision and considered the comments I received.

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What I found

7. 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. The building regulations cover "building work" such as the erection or extension of a building, or underpinning. They do not apply to excavation works.
8. Local authorities must issue a completion certificate when satisfied that building regulations have been met. However, this is not a guarantee that works are to the required standard. Councils are not responsible for the quality of the building work or the impact of any defective work. This responsibility lies with the builder or the land owner.
9. Councils have an obligation under the Building Act 1984 to deal with dangerous structures in their area. The building control officer will visit the site to determine whether any action needs to be taken to remove any imminent danger.

Planning permission

10. Councils grant planning permission in their role as local planning authorities. Planning permission is not normally needed for covering land outside a house with hard surfaces at ground level, although significant works of embanking or terracing to support a hard surface might need a planning application.

Party Wall Agreements

11. The Party Wall Act says people who plan to:
• excavate within 3 metres of any part of a neighbouring owner's building or structure, where any part of that work will go deeper than the neighbour's foundations; or
• excavate within 6 metres, where any part of that work will meet a line drawn downwards at 45° in the direction of the excavation from the bottom of the neighbour's foundations
12. must serve a notice on the adjoining owner to inform them and to state whether the foundations will be strengthened or safeguarded. If a notice is not served, the adjoining owner may seek to stop the work through a court injunction or seek other legal redress.
13. Councils have no part to play in Party Wall Agreements; they are a civil matter between neighbours.

What happened

14. In July 2018, Mr D’s neighbour started to excavate his rear garden. Mr D says the excavation was between six to ten feet deep and next to his boundary, about a metre from his house.
15. Mr D witnessed a council planning officer visiting the site on a Sunday. The neighbour then told Mr D that the officer had said the excavation was minor engineering works that did not require planning permission.
16. Mr D disputes this. He says a qualified land and building surveyor attended his property and found the works were engineering works that would affect the "pressure bulb" below his house supporting his foundations. The surveyor said the works should therefore be subject to planning restrictions and the neighbour should be required to ensure sufficient support was given to his foundations. Mr D therefore informed the Council’s building control team that his property was unsafe.
17. The building control officer told Mr D he had asked the neighbour to take steps to “ensure your foundations are not undermined by the reduction in ground level brought about by ongoing landscaping at the rear of their property and that adequate retention is reinstated."
18. Following further correspondence between Mr D and the officer, in September 2018 the officer told Mr D that the neighbour had shown him a report by a qualified engineer and that the works had not created a dangerous structure. The officer said this meant building control’s involvement had ended. He advised Mr D to inform his insurers of the works and suggested he may wish to purchase the neighbour’s engineer’s report.
19. Mr D complained to the Council in November 2018. He said the Council’s advice had changed from requiring the neighbour to install a retaining wall, to allowing a wooden raised bed. Mr D was concerned there was no confirmation his property was safe and that the Council had not followed its policies. He also considered the planning officer’s decision may be flawed, as it was unclear if the officer had been working on behalf of the Council or the neighbour’s builder.
20. The Council responded on 14 November 2018, but Mr D did not receive this. After Mr D chased the Council, it sent a Stage 2 response in January 2019. Both responses were signed by the same Council director.
21. The Council did not uphold Mr D’s complaint. It said it had determined the works were minor and did not require planning permission and no contravention of planning or building control had been identified.
22. The Council had advised the neighbour that support should be made to Mr D’s property if required, but in the absence of any evidence that Mr D’s property had been damaged, there was no action that building control could take. Nor could the Council require the neighbour to provide Mr D with assurances from qualified professionals as to whether Mr D’s house would be affected by subsidence.
23. The Council noted that if Mr D’s property become dangerous, it would be his responsibility to make repairs. If it could be demonstrated that the neighbour’s works had caused Mr D’s property to become dangerous, he could take private action to recover the any repair costs from the neighbour.
24. The Council considered there had been no breaches of professional ethics or codes of conduct by officers.

My findings

25. I have discontinued my investigation into this complaint. This is because:
• Mr D has an alternative route through the courts if his property is damaged
• he has not been caused any significant injustice by the Council’s actions.
• we cannot achieve any worthwhile outcome for Mr D.
26. The person undertaking building work is primarily responsible for the standard of work including any impact on neighbouring properties. If Mr D considers his neighbour has damaged his property this is a civil matter which he can pursue by making an insurance claim or taking action through the courts if needed. There is no role for the Council in this.
27. If Mr D considers the damage was caused by the Council's negligence it would be reasonable to expect him to go to court. The test for negligence is one for a court of law, not the Ombudsman.
28. Mr D is concerned his foundations may have been damaged, but there are no visible signs of damage at the moment. The Ombudsman investigates complaints that fault by a council has caused significant injustice to the complainant. As there is no evidence of damage to Mr D’s property, any fault there may have been by the Council has not caused injustice to Mr D.
29. In this case, it is possible that a Party Wall Act Agreement should have been made between the neighbours. However, this is a civil matter between the neighbours; the Council has no part to play.
30. The Council has decided the works do not require building regulations approval and have not caused a dangerous structure. These are decisions the Council is entitled to make. The Ombudsman cannot question them without evidence of fault. I realise Mr D disagrees with the Council’s view, but that is not evidence of fault.
31. Even if we could say the Council was at fault, we could not hold it responsible for the cost of any remedial work. This is because the courts have held that councils are not liable for financial loss resulting from any failure to ensure compliance with the building regulations; liability rests with the owner of the building and those carrying out the work. Neither could I require the Council to commission an independent assessment of Mr D’s property, as the Council has no role in a civil matter between neighbours.
32. Mr D says the works should have had planning permission. It is the role of the planning system, not the Ombudsman, to decide on the granting of planning permission. My role is to determine whether there has been administrative fault in the way the decision was made. This means, if I found fault in the way the Council decided no planning permission was required, I could not say planning permission was needed, I could only ask the Council to reconsider its decision. However, this would not achieve what Mr D is seeking as planning officers would not assess whether the works had damaged his property.
33. Mr D considers the Council has acted fraudulently because the planning officer visited on a non-working day. I cannot say this is evidence of fraud. In addition, the Ombudsman cannot investigate personnel matters, including requesting a council to take disciplinary action against a member of staff.
34. Further investigation by the Ombudsman would therefore not achieve any worthwhile outcome for Mr D.
35. There is apparent fault by the Council in dealing with Mr D’s complaint, as the same officer responded at Stage 1 and Stage 2 of the process. However, we will not investigate a complaint about the way the Council has handled the matter when we are not investigating the substantive issue.

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Final decision

36. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman