Summary: Mr X complained about the Council’s failure to protect him from his neighbour’s extension that was built without planning permission. Mr X believes that his neighbour’s home is now unsafe. There was no fault in the building control decision the Council has made. The planning issues raised in the complaint related to decisions made by the Planning Inspectorate, which is not a body we can investigate.

The complaint

1. Mr X complained about the Council’s failure to protect him from his neighbour’s extension, which was built without planning permission. Mr X is concerned the building is now dangerous, as a result of building works.
2. Mr X complained:
• the footings for the new extension are not as deep as had been required when he built his own extension;
• there is a crack in the wall of his neighbour’s home, which appeared since building work began. He is concerned for his family’s safety, should the building collapse;
• the Council has not enforced a planning condition requiring the extension to be finished by rendering in concrete to improve its appearance; and
• other aspects of the building work are shoddy and of poor quality.

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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. 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)
5. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including decisions made by the Planning Inspectorate.
7. 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

Building control authority powers

8. Councils’ building control powers are mainly found in the Building Act 1984 but are also in regulations and government guidance.
9. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to consider and follow. Building control officers are not required to ensure that building works are of good quality or tidily done. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.

Planning law and guidance

10. The Council’s powers are mainly found in the Town and Country Planning Act 1990 and in other Acts and regulations. The government has issued policy and guidance that explains how powers are used and decisions made.
11. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
14. 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.
15. The Planning Inspectorate acts on behalf of a government minister. The Planning Inspectorate considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; and
• planning enforcement notices.

16. The Planning Inspectorate is not a body within our jurisdiction, and so we cannot investigate its decisions.

Background to the complaint

17. Many years ago, Mr X’s neighbour built an extension on the rear of his single storey home. I will refer to this extension as ‘Extension 1’. More recently, the neighbour built a second extension, which I will refer to as ‘Extension 2’.
18. The Council’s planning officers investigated two complaints about the property. The first was that the roof of Extension 1 had been raised. The second was that Extension 2 was built without planning permission.
19. The neighbour submitted a planning application for Extension 2, which the Council refused. The neighbour appealed against the refusal and the Planning Inspector allowed the appeal because it did not cause significant harm to the public.
20. The Council served a planning enforcement notice because the roof of Extension 1 had been raised without planning permission. The neighbour appealed against the notice and the Planning Inspectorate allowed the appeal because it did not cause significant harm to the public.
21. The building work on Extension 2 is not yet complete. The Council says that, because of this, it cannot enforce the condition requiring the walls to be rendered. During our conversation, Mr X said that his relationship with his neighbour is very poor and he would not be willing to allow access onto his land for the rendering work to be done.
22. Mr X complained to the Council’s building control department, because he had noticed the footings to Extension 2 were shallower than he had been required to dig before building his own extension. Building control officers decided the footings to Extension 2 were satisfactory.
23. Mr X also says he complained about a crack in the side wall of his neighbour’s house. He believes this is the result of poor building work.
24. The Council says its building control department has no record of a complaint about any structural defect, but it will contact Mr X to arrange an inspection as soon as possible.

My findings

Mr X’s concerns

25. Mr X says his biggest concern is about the safety of his family, as he considers the work done on his neighbour’s extension was shoddy and potentially dangerous. He is also concerned by a crack in the wall of the house, which he fears might collapse.
26. Because of this, I will address building control matters first, before going on to explain my views on planning matters.

Building control

27. The decisions of the Council’s building control officers are within our remit, but we are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
28. The process we would expect is as follows. The Council should consider Mr X’s allegation and decide whether to use its statutory and regulatory powers.
29. Mr X complained about the depth of the footings for Extension 2 but the Council’s building control officers told him they are satisfied they are safe.
30. Mr X said he has had no response to his complaint about a crack in the wall of his neighbour’s home. The Council says its building control officers have recently investigated Mr X’s concerns about the wall, but they were satisfied the building is safe. The Council has informed Mr X of its decision.
31. The Council is aware of Mr X’s concerns and its powers but has decided not to act. It has followed the decision-making process we would expect and so was entitled to make the decisions it has.

Planning control

32. The Council’s planning decisions have been the subject of appeals to the Planning Inspectorate and we have no power to investigate its decisions.
33. The Planning Inspector imposed a planning condition, requiring the walls to be finished in render and it is for the Council to ensure compliance with planning conditions. The building work for Extension 2 is not substantially complete, so the Council is not able to enforce that condition yet. It may decide not to enforce the condition in so far as it relates to the side of the extension facing Mr X if he does not allow his neighbour access to his land, because:
• the neighbour is likely to need access to Mr X’s land to carry out the work; and
• the purpose of the condition was partly to protect Mr X’s amenity and it is his choice whether to benefit from that protection.

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Final decision

34. I have completed my investigation because the building control decisions were made without fault and the planning decisions were made by a body outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman