Summary: Mr B complains the Council’s building control officers gave contradictory and inconsistent advice. The Ombudsman finds no evidence of fault by the Council in this regard. There was some fault in the handling of the complaint leading to delay, for which an apology has been given, and the Council has agreed to identify and implement improvements in its complaint handling.

The complaint

1. The complainant, whom I shall call Mr B, complains about the actions of the Council in respect of building control issues. He complains he was given contradictory and inconsistent advice which led to delay in the completion of building works to his home. The Council also delayed in responding to his complaint about these matters.

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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’. 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)
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

4. I have considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
5. I provided Mr B and the Council with a draft of this decision and considered all comments received in response.

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What I found

Legal and administrative information

6. 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.
7. 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.
8. Building Regulations approval is most commonly 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); or
• 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.

9. 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.
10. 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 particular case.

What happened in this case

11. Mr B submitted a building notice application to the Council in May 2018. With the application he enclosed plans and other documents relevant to the planning application he had made to the Council in 2016 for extension to his home, and its approval. The Council acknowledged receipt of the application and wrote to Mr B to advise about the process.
12. The Council officer visited the day after the application was received, as works had already begun, and further visits were made over the following five months.
    The Council’s records evidence that in addition to site visits it was in email communication with Mr B or those acting for him in respect of various aspects of the works to the property. The Council issued a completion certificate for the works in April 2019.
13. Mr B complains about the Council’s action in respect of a number of aspects of the build, in particular concerning a heat sensor; the floor to a storage area; the need for an internal wall to be block not stud walling; and the positioning of an inspection cover (manhole). He considers queries about these aspects of the work should have been raised sooner by the Council, allowing the project to have been completed sooner and at lesser cost.

The heat sensor

14. The Council initially recommended a heat detector to the kitchen area to provide adequate warning to users of the adjacent utility room. The quote for the works which Mr B had submitted with his building notice application had included the installation of a heat sensor, although the specified use of the adjoining space as a utility room did not require a sensor in order to comply with Building Regulations. The Council reports that at an inspection visit in September the builder’s representative advised that the area was no longer to be a utility space as shown on submitted plans: Mr B says this is not correct. But the Council’s position is that as heating has been installed in this space it could be used as a habitable room and, as it is accessed off the kitchen, a heat sensor is a requirement for compliance with the Building Regulations in respect of fire safety.

Stud or block walling

15. In respect of the requirement for internal walling, the space designated on the plans as a utility room had heating installed and that space adjoins an unheated storage space, which according to the approved plans for the development was to have a roller shutter door to the exterior. The separating wall between these two types of space, heated and unheated, needs to meet certain requirements specified in the Building Regulations: the measure of heat transfer through a particular component of construction is the ‘U value’. Site visit notes made by the Council’s officer include the following: “Discussed with builders site representative how u value between store (unheated space) and utility room (heated space) is to be achieved as it is an unheated area advised fire rated studwork or blockwork is sufficient”.

Flooring to the storage area

16. As noted above, the storage area was shown on the plans which were approved documents associated with the planning permission in 2016, and they showed a roller shutter external door. As part of the approved development, Mr B could therefore install this type of door if he wished to do so. Under the Building Regulations, where a garage forms an integral part of a dwelling house, a step down into the storage area or a sloping floor was needed for fire safety compliance. The Council’s notes show that it discussed these options with the builder. Mr B questions what kind of vehicle he could fit into the space to use it as a garage, but I see no grounds to question that the approved development could be used in that manner for a motorised vehicle. And, on that basis, the Council’s consideration of fire safety issues in that regard was reasonable. Mr B feels the Council should have highlighted the issue with the floor at an earlier stage, on a review of the initial plans or before the floor was poured after the insulation inspection. However, as has been noted, a building notice application does not require the Council to check the plans for compliance with the Building Regulations, and the Council says it was not asked to inspect the insulation in place prior to the laying of the floor, when it might have addressed the placement of a step.

Positioning of the manhole

17. Mr B reports that he was told during inspection of the footings to the extension that a manhole cover could remain in its position but was subsequently told it had to be moved. Notes from an early site visit refer to a ‘brief discussion on drainage proposal and bridging arrangements’. They do not record what was said but would not be expected to contain that level of detail. Where there is an intention to build over or close to a public sewer, the Building Regulations require written agreement from the sewerage undertaker, in this case Thames Water, and that should be sought. The Council’s position is that its surveyor would not advise that a manhole to a Thames Water sewer could remain internally as this would not comply with Building Regulations and Thames Water’s requirements. The quotation for the works had included installation of a new manhole and had stated that all existing and new services were to be connected to this. The Council notes that this would indicate that the builder was fully aware of the requirements to provide an external manhole and had communicated that requirement to Mr B by allowing for a cost for it.

Analysis

18. Mr B followed the building notice route when he sought Building Regulations approval from the Council. As set out in paragraph 8 above there is a clear distinction between the level of checks required in respect of a full plans application and the more limited checks required for a building notice application, and it was appropriate that the Council highlight this distinction.
19. The Planning Portal, the government’s online resource for planning and building control, says the following in respect of the building notice procedure:
    “If you decide to use this procedure, you need to be confident that the works will comply with the building regulations or you will risk having to correct any work carried out if the local authority requests this. In this respect you do not have the protection provided by the approval of ‘full plans’”.
20. Mr B considers that the Council should have told him sooner in the process that aspects of his build were non-compliant. But the onus is on those responsible for the build to design and construct in such a way as to comply with the Building Regulations: the Council’s role here was not to act as a supervisor or clerk of works but to check compliance. It did so, and I have seen no evidence to show any advice or instruction which it then changed without reason or gave factually incorrect information about the requirements of the Regulations leading to unnecessary works being undertaken.
21. I also note that in respect of building over or within three metres of a public sewer up to 225 millimetres in diameter, a full plans submission must be made. It is not clear whether the manhole referred to in Mr B’s case was to such a sewer but as the Council has noted, no drainage or manholes were shown on the plans Mr B submitted with his application. Responsibility for identifying whether a public sewer could be affected by development, and making the appropriate type of application for Building Regulations approval, was matter for Mr B.

Complaint handling

22. When Mr B complained to the Council it acknowledged his complaint and said it would respond in working 20 days. It did not do so, and there was considerable delay amounting to around three months. The Council did not respond until the Ombudsman became involved. However, when it did respond it apologised for delay. The Council should have advised Mr B if there was to be an extension to the 20-day timescale for response, but it did not do so, and that was fault. The response the Council issued should also have advised Mr B about progressing his complaint to the next stage of its procedure, but given that Mr B had already lodged his complaint with the Ombudsman that omission did not lead to any injustice.
23. Insofar as the reasons for overall delay are concerned, the Council has confirmed that when the complaint was made to the complaints department it was overlooked. It attributes this failing to the service being overstretched because of staff shortages.

Agreed action

24. The Council has already apologised for delay in the complaint and I no recommendation for further personal remedy is necessary. However, given that there was a failure to process the complaint in accordance with the Council’s published complaints procedure, I recommended that within three months of the date of the decision on this complaint the Council reviews lessons learned from the handling of this complaint and identifies and implements measures to prevent recurrence of similar fault.
25. The Council has agreed to this recommendation.

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Final decision

26. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman