London Borough of Bromley (19 005 144)

Category : Planning > Building control

Decision : Not upheld

Decision date : 22 Jun 2020

The Ombudsman's final decision:

Summary: Mr B complains the Council was at fault in the way it dealt with his concerns about discharge from a neighbour’s boiler flue. The Ombudsman has found no evidence of fault in the way the Council considered these matters so has completed his investigation.

The complaint

  1. Mr B complains that the Council has failed to properly investigate his complaint about discharge from his neighbour’s boiler flue.
  2. He says that this is causing a nuisance. He cannot open his back door or windows as the flue plume gets in and they cannot use their garden.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. The case has been reallocated to me to consider. The previous Investigator spoke to Mr B about his complaint. I have considered the notes of the telephone call and considered the information sent by Mr B and the Council’s response to our enquiries. I have also considered:
    • Building Act 1984
    • Building Regulations 2010 Part J
    • The Gas Safety (Installation and Use) Regulations 1998
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Enforcement of building regulations

  1. Councils have a general duty to enforce Building Regulations. In line with Government guidance, councils usually seek to do so by informal means. If that does not achieve compliance, under the Building Act 1984 councils may:
    • prosecute the person carrying out the work in the Magistrates' Court where an unlimited fine may be imposed. Prosecution is possible up to two years after the completion of the offending work but must be brought within six months of the date the council had enough evidence to justify bringing a prosecution.
    • serve an enforcement notice on the building owner under section 36 of the Act, requiring alteration or removal of work which contravenes the regulations. If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner. A section 36 enforcement notice cannot be served later than 12 months from the date of completion of the building work.
  2. Councils may also apply for an injunction to require work to cease or to compel the building owner to undertake specified works to rectify a breach. Injunctions tend to be used for the most serious breaches, for example where a building is dangerous to occupants or neighbours. An injunction can be sought at any time after the carrying out of the works.
  3. Enforcement action is discretionary and so it is up to the judgment of council building control officers whether and how to enforce the regulations. The Government advises councils that enforcement powers should only be used if a breach causes, or is likely to cause, significant harm or risk of harm.

Statutory Nuisance

  1. Councils must look into complaints about possible statutory nuisances under the Environmental Protection Act 1990. For something to be a 'statutory nuisance' it must either:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premise; or
    • Injure health or be likely to injure health
  2. The statutory nuisance must be witnessed by an environmental health officer who will come to an independent judgment on whether it is a nuisance.
  3. If the officer decides a statutory nuisance does not exist, an informal letter may be sent to the owner/occupier of the property. This letter will inform them that a complaint has been made and recommend any action the officer considers may be necessary.

Combustible appliances

  1. The rules for installing combustible appliances are set out in the Building Regulations 2010 Part J. These say a flue outlet should be at least 600mm from a neighbour’s boundary when facing it, and 300mm from it when running parallel. It should be positioned so its combustion products do not cause a nuisance, for example it should not be positioned over an adjoining property.
  2. The Government has a competent person’s scheme to allow installers deemed competent through membership of accredited organisations (in this case Gas Safe) to self-certificate their work. This excludes the Council from the certification process as the installers do not have to rely on inspections from building control bodies.
  3. If a Gas Safe registered engineer installs a heat producing gas appliance, they should provide a Building Regulations Compliance Certificate within 28 days. This informs the council of the new appliance and is evidence of compliance with Building Regulations. Non-notification of the installation to Gas Safe or the Council is a contravention of building regulations.
  4. Installers may also leave a Gas Safety Record. The Gas Safety Record details what checks the engineer has carried out and if the appliances meet the appropriate safety standards. They do not confirm compliance with Building Regulations.

What happened

  1. Mr B’s neighbour installed a new boiler and flue in 2016. The installing engineer provided a Gas Safe certificate under the competent persons’ scheme. Mr B complained that the new flue was discharging over his garden. The Council’s Environmental Health Service visited Mr B's property in September 2016 but decided that there was no statutory nuisance.
  2. The neighbour repositioned the flue in February 2019. Mr B says this has not helped. Mr B says the flue still discharges over his property and is clearly closer than the minimum recommended distance from his boundary. Mr B complained again to the Council’s building control team. The Building Control service said the installer registered an installation certificate with Gas Safe under the Government’s competent person scheme, so the Council had no further involvement in the matter.
  3. The Council advised Mr B to complain to Gas Safe. The Council said it would rely on the input of Gas Safe as specialists as to whether there had been any breach of building regulations. It said Gas Safe had a duty to inspect a number of installations carried out by their members. The Council told Mr B the minimum distance from a boundary was a recommendation and not a requirement.
  4. Gas Safe visited Mr B’s home in March 2019. It could only inspect the flue from Mr B’s home as it had no right of entry into his neighbour’s home without permission. From its inspection, Gas Safe concluded that the flue may breach the regulations as the discharge from it may cause a nuisance.

The Council’s response to my enquiries

  1. In response to my enquiries, the Council says it investigated the flue in 2016 and decided it was not a nuisance. It does not consider Building Regulations apply to the repositioned flue as the boiler was installed under the competent person’s scheme and certified by Gas Safe. So, the Council is entitled to rely on that. It says as such it has no power to inspect it or take enforcement action. However, the Council accepted it had a duty to investigate whether the flue was causing a statutory nuisance.

Visit by Environmental Health officer

  1. In January 2020, an environmental health officer visited Mr B to assess how the flue affected his property. The officer reported no smells from the boiler flue as he walked through Mr B’s house to the garden. The officer found the boiler was operating and venting water vapour straight up. The officer did not detect any smells or particles from the flue.
  2. Mr B said the fumes were preventing the use of his first-floor bedroom and he had to keep the windows closed. The officer confirmed the flue gases were mainly plumes of water vapour unlikely to be prejudicial to health. The officer said the vapour from the flue did not show the gases from the boiler were going near Mr B’s property, so he did not consider the need to assess from the rear bedroom. The officer found no statutory nuisance from the flue and said he would visit again if Mr B found the rear bedroom affected. The officer advised Mr B he could take his own action over the nuisance to the courts.

Visit by Building Control

  1. The correspondence between the Council and Mr B shows an issue over whether the flue has been relocated or whether the neighbour has installed a new boiler. The Council says it could only act depending on whether it was a new boiler and when it was installed. However, because of my enquiries the Council agreed to go and inspect the whole installation including the flue.
  2. A building control surveyor inspected the boiler and installation in February 2020 and spoke to both parties. Mr B’ s neighbour agreed to send paperwork for the boiler so the Council could take a view on Building Regulations matters.
  3. The neighbour confirmed a new boiler was installed in February 2019 and it has a Gas Safe certificate. The Council accepts the engineer who installed the boiler was registered to fit it and issue their acceptance of compliance to Gas Safe. And Gas Safe in turn issued their certificate. So, Building Control therefore accepts the engineer was satisfied the proposal met Building Regulations requirements.
  4. Building Control officers consider the issue with the position of the flue is a marginal one. The officers consider even if there is a minor infringement of the Building Regulations, the elbow at the end of the flue would only have to be repositioned, so there would be no flue gases directed at Mr B’s garden. Although wind direction would have an unavoidable effect.
  5. The Council says the assessment from its Building Control officers is that the outlet to the flue at nearly three metres above ground would be unlikely to be causing a nuisance as the flue gases will spread into the atmosphere at this height. The Council accepts the installation is not elegant but does not consider it necessary to carry out any further enforcement work on the flue and require it to be repositioned.

My assessment

  1. Primary responsibility for ensuring building work is in line with building regulations rests with those who commission it and those who do the work. The Council has confirmed that the boiler and flue were installed under the competent person’s scheme. As such I am satisfied the Council is entitled to rely on this as an indication it has been correctly installed. Because of this I do not consider there has been fault by the Council. And its decision not to inspect the installation in February 2019 is one it was entitled to make.
  2. The Council has now been to inspect the boiler which was an action Mr B was seeking when making his complaint. The Council confirms it does not intend to take any further action regarding the position of the flue as any infringement may be marginal at best. And in its view, it is not causing a significant risk.
  3. Mr B may disagree with the Council’s decision not to take any further action, but the decision is one of officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
  4. This is because officers visited Mr B’s neighbour and inspected the installation and relevant documents. The officers do not consider there is a need to carry out any enforcement action on the flue. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision from the documents I have seen so far.
  5. The Council’s comments show an Environmental Health officer also visited to inspect the position of the flue but found it was not causing a statutory nuisance. I realise Mr B says the flue has impacted on his enjoyment of his garden, but I must consider that it is Mr B’s neighbour’s actions, not the Council’s actions, that have caused this.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault in the way the Council dealt with Mr B’s concerns about the installation and discharge from his neighbour’s boiler flue.

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Investigator's decision on behalf of the Ombudsman

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