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North Devon District Council (19 011 067)

Category : Planning > Building control

Decision : Not upheld

Decision date : 24 Feb 2020

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint alleging it failed to protect the public from an unsafe building and failed to prosecute the building’s owner because he did not make the building safe after a fire.

The complaint

  1. Ms X says the Council failed to protect the public from an unsafe building and failed to prosecute the owner of the building because he did not make the building safe after a fire.

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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’. 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, or
  • it would be reasonable for the person to ask for a council review or appeal.

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

  1. 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 reviewed the complaint and considered background information provided by Ms X and the Council. I discussed matters with Ms X by telephone. I sent a draft decision statement to Ms X and the Council. I considered Ms X’s comments on it.

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What I found

Law and guidance on dangerous structures

  1. The prime responsibility for the condition of a building or structure lies with its owner; however, local authorities have an obligation under the Building Act 1984 to deal with dangerous structures in their areas and if the owner cannot be found or contacted, they can do work to make the building or structure safe and recharge the owner its reasonable costs for doing so.
  2. Dangerous structures vary from collapsing boundary walls, falling masonry and tiles, vehicle impact into buildings, fire damage, wind and weather damage neglect and poor maintenance.
  3. For the purposes of Building Regulations, there are two types of dangerous structures:
    • Imminent: structures which are at risk of collapse and must be secured for public safety. The owner will normally be recharged for emergency works carried out in these cases
    • Hazardous: structures which from a survey are unstable but not imminently dangerous. In these cases, the owner is given a reasonable time to remove the danger. Failure to respond may result in a Magistrates Court Order being obtained.
  4. The Building Control surveyor will visit the site to inspect the structure and to arrange for appropriate action to be taken to remove any danger. If the structure is considered potentially dangerous, the owner of the property will be located and requested to arrange for the structure to be removed or repaired.

Background

  1. There was a fire at a building close to Ms X’s home in April 2018. Ms X says the property was left in a dangerous state for four months. She says the property owner did not erect any scaffolding to ensure some level of safety until July 2018.
  2. In the period until the scaffolding was erected, Ms X says debris fell from the building on to the public highway and the gardens of neighbouring properties. Ms X reported these incidents to the Council.
  3. Ms X says it took over a year before the Council got the owner to address some of the safety issues around the scaffolding. During this time her family were by the scaffolding poles and her daughter was nearly hit by an asbestos tile.
  4. Ms X says there was no protection over the roof of the building to ensure no falling roof debris despite the fire service and her insurer’s advice that a tin hat/roof should be erected.
  5. Ms X says the Council did not take enforcement action to compel the owner to make the building watertight and safe for around 9 months.
  6. Ms X says when the owner finally took action, the structure he put up was unfit for the purpose as it was composed of old tarpaulin tacked on to some old wood. Ms X is dissatisfied because the Council told her it could only insist on the minimum being done by the owner to make the building safe.
  7. Ms X contacted the Council about tiles falling from the roof which she was feared contained asbestos. She says the Council acknowledged her contact and said it would investigate. However, she did not receive any report of an investigation.
  8. Ms X also complains that she did not receive replies to emails she sent on some occasions and on others, weeks would go by before the Council responded.

The Council’s account

  1. The Council points out a surveyor from its building control team visited the subject site in April 2018. The description of the danger caused by the property was falling roof tiles, guttering and masonry from the fire.
  2. It says a roofing company was already on site. Slates and loose material were removed from the building. The roofer advised the officer the company was awaiting approval for the erection of scaffolding to conduct temporary repairs. The surveyor was satisfied the immediate danger had been removed and the building was safe.
  3. In the following months, the surveyor visited the site again and did not note a danger of falling slates or materials. The officer chased the owner regarding erection of scaffolding. Erection of scaffolding was delayed due to a Police investigation.
  4. The Council says an environmental health officer contacted Ms X by email on receipt of her report of an asbestos tile. However, the officer heard nothing further from Ms X in response to his own email and so closed the case after a week. It appears the officer sent an email to the wrong email address and not that of Ms X.
  5. The Council said it responded to most emails Ms X sent although it accepted there were occasions when it failed to do so. It apologised to Ms X for those instances.
  6. The Council says it initiated court action in July 2018 because its officers were not satisfied the owner would take action to make the building safe. A hearing in the Magistrates’ court was scheduled for September 2018. However, the building owner erected scaffolding before the hearing and officers were satisfied this action meant there was no imminent danger that warranted legal action.

Finding

  1. The decision on whether the building was in imminent danger of collapse and so should be secured to protect the public was one for the surveyor to make. While Ms X considers there was an imminent danger to the public, and it was one which persisted in the following months, the officer was on site and made his judgement based on his observation of the building and action taken by the roofer. I am satisfied the surveyor acted in accordance with the Council’s procedures. I do not find cause for the Ombudsman to now substitute his judgement for that of the officer in April 2018.
  2. I do not find fault by the Council because it did not take legal action against the building owner. Where a building is not in imminent danger, the Council can give the building owner reasonable time to remove the danger. If a council is satisfied a building owner is cooperative or has taken steps to address its concerns, it can withdraw from pending legal action. That was the case here.
  3. I also do not find Ms X suffered a personal injustice because the Council did not prosecute the building owner. Responsibility for the state of the building rests with its owner. A decision to prosecute would not have provided relief for Ms X from falling debris or material from the building. Rather, it was a decision for the Council to make where it is satisfied a building was unstable but does not provide an imminent danger to the public. Any damage to Ms X’s home or injury to her or her family can be remedied by Ms X taking legal action against the party responsible whether Ms X considers that to be the building owner or the Council.
  4. The Council could have dealt with contact from Ms X regarding asbestos in a better way. The officer concerned sent an email to Ms X inviting contact but then closed the case when he believed she had not responded. The Council should consider whether environmental health officers can contact a possible complainant by other means whether by telephone or by hard copy if they are minded to close an investigation in the absence of contact with a complainant.
  5. The Council acknowledged it failed to respond to Ms X on some occasions and apologised for this failing. I consider the apology was the appropriate remedy for the lack of courtesy displayed by the Council.

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Final decision

  1. Overall, I do not find fault by the Council on the substantive issue which is whether the building was in imminent danger and so warranted protection in the public interest. There are minor errors and failings by the Council involving communication with Ms X. However, I do not find Ms X suffered significant injustice in consequence of these faults that now warrants investigation by, or a remedy from, the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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