Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s failure to investigate alleges breaches of the Building Regulations. The developer has appointed an approved inspector to oversee the work and while their initial notice remains in force the Council cannot take action. The Ombudsman has no jurisdiction over the approved inspector so it is unlikely we could achieve anything for Mrs X by investigating her complaint now.

The complaint

1. The complainant, Mrs X, complains the Council has failed to investigate alleged breaches of the Building Regulations by a developer building on land adjoining her property. She says the developer has caused £30,000 worth of damage to her private drainage system.

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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’. 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
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I reviewed Mrs X’s complaint and the Council’s response. I shared my draft decision with Mrs X and discussed the complaint with her.

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What I found

4. A developer is in the process of building on land adjoining Mrs X’s property. Mrs X says the buildings erected to not comply with the Building Regulations and the work has caused damage to her property.
5. The developer has appointed an ‘approved inspector’ (not the Council) to oversee the work and ensure it does not contravene the Building Regulations. Mrs X has reported her concerns to the Council but it says it cannot intervene.
6. Mrs X wants the Council to either require the developer to take the buildings down and put the land back to its former state or pay to put right the damage to her drainage system. She has instructed solicitors to correspond with the developers but says the developers have not responded.
7. The Ombudsman will not investigate this complaint. The developer has chosen to use an approved inspector to oversee the development and while building work is ongoing it is not for the Council intervene.
8. Building regulations set standards for the design and construction of buildings to ensure the health and safety of people in and about those buildings. A completion certificate for building work is not a guarantee that all works are completed to the necessary standard. All the certificate can and does state is that, as far as the inspector could tell at the time, building work complied with the Building Regulations.
9. In this case the approved inspector has not issued a completion certificate, so any request for enforcement action by the Council under Section 36 of the Building Act 1984 is premature. If once the work is complete the approved inspector refuses to issue a completion certificate, or if they issue a completion certificate wrongly, Mrs X may report this to the Council and we would then expect it to consider her concerns. But there is nothing more we could achieve for Mrs X now.
10. I would also ask Mrs X to note that while the Council has the power to take enforcement action and a general duty to enforce the Building Regulations in its area there is no requirement for it to take formal action in every case. Even if it finds a breach of the Building Regulations it will only take action if it decides it is in the public interest. Mrs X’s claimed injustice lies in the damage to her drainage system and it has advised this is a private civil matter between her and the developer.
11. Mrs X says she has instructed solicitors to write to the developer about the issue but they have not responded. In this case Mrs X/her solicitors should consider whether to take action through the courts. They are the only ones who can attribute liability for the damage and make a binding decision as to what the developers should do to put it right.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because an approved inspector is dealing with the developer’s ongoing building work and the Council cannot intervene while the initial notice remains in force. It is therefore unlikely we could achieve anything for Mrs X by investigating her complaint now.

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Investigator's decision on behalf of the Ombudsman