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Cheltenham Borough Council (19 006 795)

Category : Planning > Building control

Decision : Not upheld

Decision date : 11 Feb 2020

The Ombudsman's final decision:

Summary: Ms C complains the Council wrongly issued a Building Regulation completion certificate. Ms C says the developer failed to install thermal insulation and damp-proofing or adequate noise insulation which means the property has issues of damp and is difficult to keep warm which exacerbates those issues which will be costly to remedy. The Ombudsman has found no fault by the Council.

The complaint

  1. The complainant, whom I shall refer to as Ms C, complains the Council wrongly issued a Building Regulation completion certificate based on a faulty application and technical specification for her property and has misunderstood what regulations apply to a change of use from a commercial to residential development. Ms C says the developer failed to install thermal insulation and damp-proofing or adequate noise insulation.
  2. Ms C says because of the Council’s fault the property has issues of damp and is difficult to keep warm which exacerbates those issues which will be costly to remedy. Ms C also says she has incurred significant legal costs.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

  1. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made. The legislative framework of the 'Building Regulations' is principally made up of The Building Regulations 2010 and The Building (Approved Inspectors etc.) Regulations 2010.
  2. The Regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings.  'Approved documents' give examples of how the Regulations can be met, but these examples do not have to be followed.
  3. Building Regulations approval can usually be obtained in one of two ways:
  • With full plans: drawings are deposited 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.
  1. Primary responsibility for building work rests with those who commission it and those who do the work. When carrying out their functions, local authorities will visit at various stages, but they are not required to do so. The number and timings of any inspections may vary by local authority and type of development. Local authorities will be not be present for the great majority of the project and do not act as a ‘clerk of works’. On request and when satisfied after taking 'all reasonable steps' that the Regulations have been met, they must issue a completion certificate. This is not a guarantee that all works have been done to the required standard. Building Regulations provide a means for the local authority to maintain building standards in general, rather than imposing a duty to maintain standards in each case.
  2. The courts have held as an issue of public policy that councils are not liable for ‘pure economic loss.’ It is the Ombudsman’s view that only in exceptional circumstances should he look to impose a duty on councils where the courts have held there should be no liability in law.
  3. It is prudent for a person purchasing a property to have a full survey completed before completing the purchase. If a defect is discovered in work completed before the purchase, the new property owner would have a remedy against either the person who carried out the survey or the previous owner.

Key events

  1. The Council received a full plans application in early May 2014 which described the works as a change of use from a furniture shop to four residential apartments. The Council issued conditional approval later that month subject to being provided with adequate sound test results.
  2. The application was subsequently split into separate plots. The Council issued a completion certificate in March 2016 for the plot subsequently bought by Ms C.
  3. Ms C purchased her property within the above development in 2017. Ms C says that after six months she began to experience problems with damp and noise. Ms C contacted the Council in early March 2018 about her property.
  4. The Council provided Ms C with information about the relevant building regulations that applied to her property in March and subsequently met her on site in June. Following this meeting, Ms C advised the Council that the developer had agreed to make remedial repairs. Ms C says the developer subsequently reneged on this agreement.
  5. Ms C complained to the Council towards the end of September. The Council provided a response to Ms C’s complaint in early October. Ms C escalated her complaint in October and received a final response from the Council towards the end of the month.
  6. The Council confirmed the regulation about ground moisture in C2 of Schedule 1 (resistance to moisture) of the Building Regulations 2010 did not apply to the material change that applied to Ms C’s property. The Council also confirmed Part L of the Regulations (thermal insulation) would apply but guidance provided an exemption from the energy efficiency requirements for buildings in a conservation area. In addition, the Part L requirements only required works where there had been a change in the energy status or where there was adding or removing a layer from a thermal element. The Council highlighted any control would have been restricted to either of those circumstances. The Council confirmed its records showed the case officer had sight of the noise testing results on site and considered these were satisfactory. The Council accepts a copy of the test results should have been requested and placed on the file but this did not happen. However, these documents should have been kept by the person undertaking the works. The Council confirmed there were no apparent contraventions of the relevant building regulations that would allow it to take enforcement action.
  7. The Council has provided a further detailed explanation for this decision. Statutory Instrument ‘2010 No 2214 Building and Buildings, England and Wales the Building Regulations 2010’ provides at Part 1, under ‘Interpretation’ the following relevant definitions:

“Dwelling” includes a dwelling-house and a flat.

“Dwelling-house” does not include a flat or a building containing a flat.

“Flat” means separate and self-contained premises constructed or adapted for use for residential purposes and forming part of a building from some other part of which it is divided horizontally.

  1. The meaning of material change of use is set out in section 5:

“For the purposes of paragraph 8(1)(e) of Schedule 1 to the Act and for the purposes of these Regulations, there is a material change of use where there is a change in the purposes for which or the circumstances in which a building is used, so that after that change:

      1. the building is used as a dwelling, where previously it was not;
      2. the building contains a flat, where previously it did not; …”
  1. The building in which Ms C has a property is two storey and the application was for four new apartments at ground level only, which are separate and self-contained premises constructed or adapted for use for residential purposes and forming part of a building from some other part of which it is divided horizontally. Therefore, these properties are interpreted as flats under 5(b) above.
  2. Regulation 6(e) provides that where the material change is as set out above at 5(a) above it must comply with C2 (resistance to moisture). However, Regulation 6(d) applies to material change in cases where 5(b) applies and that is to comply with C1(2) (resistance to contaminants). The requirement of C2 (resistance to moisture) only applies in the case of a material change of use described in regulation 5(a) above.
  3. The Council has provided cogent reasons above why it considers there was no requirement to control ground moisture or for thermal insulation with reference to the relevant regulations at the time. I see no obvious fault in the way the Council has reached this interpretation.
  4. Ms C has suggested the drawings submitted with the application were inadequate and the technical specification did not match the drawings and highlighted as an example that there were references to cavity walls where these do not exist. Ms C considered the Council should not have accepted such inadequate drawings and contradictory specification.
  5. The Council has provided a copy of the relevant documents and considers the drawings and specification are consistent. The Council has confirmed the floor plans do indicate new cavity walls as part of the scheme and this is reflected in the subsequent drawings. The Council was satisfied the details provided were reasonable subject to conditions.
  6. The Council was not responsible for the actions or quality of the builder’s work. Responsibility for compliance with building regulations lies on the builder and landowner. We do not expect councils to act as a guarantor of last resort when there are problems between builders and their customers. Resolutions to civil disputes are ultimately settled in the civil courts, not by councils.
  7. The Council, as a building control inspection authority, gave advice and inspected the building to satisfy itself that building regulations were met. It followed the process we would expect and so I find no fault.
  8. The Council has properly responded to Ms C’s complaint and considered its enforcement powers under the Building Act 1984. However, the works that Ms C complains about are outside the Council’s control or deemed to comply with the regulations in force at the time.

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Final decision

  1. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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