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Canterbury City Council (19 012 724)

Category : Planning > Building control

Decision : Not upheld

Decision date : 20 Mar 2020

The Ombudsman's final decision:

Summary: Mrs X complained the Council’s building control officer gave her incorrect advice, which led to her builder carrying out unauthorised works on a drain owned by the local statutory water undertaker. We ended our investigation because we are unlikely to find fault or recommend a meaningful remedy for Mrs X.

The complaint

  1. Mrs X complained the Council’s Building Control Officer gave her wrong advice about drains on her land, which caused her to carry out works without the permission of the drain owner.

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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 further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

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

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How I considered this complaint

  1. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave the Council and Mrs X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Building Control

  1. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with Building Regulations, and requiring or carrying out emergency works to make buildings safe.
  2. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
  3. Building regulations approval can be granted by Councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
  4. There are two ways a building owner can get building regulations approval. These are:
    • Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
    • Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
  5. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner.
  6. Owners of buildings may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder. It has also been suggested that independent approved inspectors may be liable to their clients, and action may be taken through the contract of service between the parties.

What happened

  1. Mrs X was having building work done on her land. She had submitted a full plans application to the Council for building regulations. Her builder dug the foundations and found a drain crossing her land. Mrs X had been aware of the drain as it had been marked on the deeds as a private drain she shared with her neighbour.
  2. The builder needed to divert the drain, so Mrs X asked the Council’s BCO to advise her.
  3. The BCO arrived and gave advice to Mrs X and her builder. Mrs X says she showed the deeds and plan to the BCO, who gave clear advice on what the builder should do. She says that after consulting her neighbour about the works, her builder diverted the drain in accordance with this advice.
  4. Later, a second BCO visited and gave different advice, informing Mrs X that the drains were not private, but had been adopted by the local statutory water undertaker.
  5. Mrs X said she checked and found out that the drains had been adopted by the local statutory water undertaker in 2011, after she had moved into her home. Mrs X says she had not been informed of this change.
  6. Mrs X informed the statutory water undertaker what had happened, and it threatened her with legal action unless she restored the drain to its original route. Mrs X entered into arbitration and it was finally agreed that no further action was necessary.
  7. Mrs X believes the first BCO was at fault for not giving her the same advice the second BCO did. She says, if this had happened, she might have avoided the cost, stress and inconvenience of what followed.
  8. Mrs X complained to the Council, but it says its records only show that the first BCO gave advice on drainage options.

My findings

  1. Mrs X interpreted the first BCO’s advice as an instruction. She says she would have expected the first BCO to have known the drains were unlikely to be private.
  2. I do not think we should continue our investigation, and my reasons are as follows:
    • The Council’s role here was to decide whether the works Mrs X and her builder were carrying out complied with building regulations. It is not the BCO’s role to research or advise on private land or drainage rights.
    • We cannot know what was said or understood by what was said when the first BCO gave advice on the drain.
    • We would expect the statutory water undertaker to write to landowners whose drains they were adopting and taking responsibility for upkeep. We cannot know if any letter was sent or received nearly 10 years after the event.
    • I appreciate this would have been a difficult time for Mrs X, but building work involves a certain amount of risk and inconvenience. Mrs X had to do something about the drain, as it crossed her new foundations. Eventually, she did not have to restore the drains, but it is likely, even if she had known the drains had been adopted, she would have suffered some cost, delay and inconvenience.
    • Primary responsibility for the lawfulness of building work and building regulations rests with building owners and builders. Councils should not be seen as a ‘guarantor of last resort’ when things go wrong, as they are not directly liable for poor or unlawful building work.
  3. For these reasons, I am unlikely to find evidence of fault or be able to recommend a meaningful remedy to Mrs X. Because of this, I should not investigate Mrs X’s complaint further.

Final decision

  1. I ended my investigation as I am unlikely to find fault or provide a meaningful remedy for Mrs X.

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Investigator's decision on behalf of the Ombudsman

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