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London Borough of Croydon (20 003 058)

Category : Planning > Building control

Decision : Not upheld

Decision date : 22 Jul 2021

The Ombudsman's final decision:

Summary: There is no fault with the Council’s decision to place a condition on a building control approval or with the time taken to decide the applications. The Council has also investigated the complaints made by Mr X against his neighbour. There is no evidence of fault in its investigation of complaints about a brick chimney. A complex neighbour dispute means the Council cannot resolve the situation as Mr X wants after he altered a shared chimney. The neighbours metal flue was installed by an approved installer, who has confirmed it was compliant, so there is no fault in the Council’s decision not to investigate further.

The complaint

  1. The complainant, who I shall call Mr X, complains the Council has not adequately investigated his complaint that a neighbour had installed a wood burner but the metal flue does not comply with building regulations. He says that this means that his roof fills with smoke.
  2. Mr X complains the Council has put a condition on his building regulation approval that he ‘resolve the chimney issue’ which he cannot as the chimney is in the neighbours property and the neighbour will not agree to the works.
  3. Mr X also complains that Environmental Health have not investigated whether the smoke from his neighbours chimney is a nuisance.

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What I have investigated

  1. I have investigated Mr X’s complaints about the building control department. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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 put in by Mr X and discussed the complaint with him.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. Mr X lives in a semi-detached bungalow. There is a brick chimney on the shared wall between the properties.
  2. In September 2018 Mr X got planning permission for ‘alterations, erection of gable end to existing roof at side and erection of single storey side/rear extension with accommodation in the roof space with gable end at side’.
  3. Mr X put in an application for building control approval for a single storey side and rear extension with an integral garage on 10 August 2018. Mr X agreed on the form to extend the time limit (for the Council to make a decision on the application) up to a maximum of 2 months. Mr X also said on the form that he agreed to a conditional approval.
  4. The Council sent a Mr X a rejection notice on his building control application on 18 October 2018. Mr X resubmitted his full plans building control application on 26 October 2018. This was for ‘proposed demolition of garage and reconstruction as integral garage with side and rear extensions. The plans said there would be two phases:
    • Phase 1 ground floor extension to side and rear.
    • Phase 2 loft accommodation and extension to loft in spring 2019.

The Council has said that is did not receive this letter and only became aware of it on 23 October 2019 when a copy was sent to the Council. Building control carried out 6 site inspections in 2018/2019. The Council had asked Mr X on 5 October 2019, after a site inspection, why he had not resubmitted the plans. The Council decided the resubmitted plans on 8 November 2019

  1. Mr X’s neighbour put in a wood burning stove in November 2018, which had a new metal flue near the original brick chimney. Mr X says his neighbour did not tell the installer about Mr X’s planning consent for accommodation in the roof space.
  2. Mr X complained to the Council on 12 November 2018. His specific complaints were that his neighbour:
    • Installed a new flue/flue liner (approved document J, paragraph 1.35) without prior notification.
    • Installed a new flue against a party wall which does not meet the minimum requirements of approved document B (fire safety).
    • Installed a new flue that does not meet minimum clearances and dimensions in approved document J, paragraph 2.11 and 2.5.
  3. The Council replied on 15 November that works to the neighbours metal flue were done by an approved installer under the HETAS scheme. So, first Mr X should raise the issue with the installer and then HETAS. The Council said that ‘the Council does have powers to enforce against works which do not comply with the building regulations but this is highly irregular when an approved installer is appointed and normally only used when unauthorised installations are carried out’
  4. Mr X says that neither the installer nor HETAS can resolve the issue of the metal flue he considers unlawful as they have no powers of entry and his neighbour has refused them access. He said that he was reluctant to complain to HETAS as the installer was a neighbour and he worried about arguments.
  5. Mr X says that in August 2019 he had largely finished his altered roof and chimney. The building control officer visited the site on 28 August 2019. Mr X complains the building control officer was rude to him and his builder over the telephone after visiting the unattended site.
  6. The building control officer asked planning enforcement to check if Mr X’s extension was in breach of planning regulations. Mr X says that he had to take a day off work to meet the planning officer on 7 October 2019.

Analysis of Mr X’s complaints

  1. Most building work, whether new, alterations, or extensions needs Building Regulation approval. The Regulations set standards for the design and construction of buildings and ensure the health and safety of people in and about those buildings.  'Approved documents' give examples of how the Regulations can be met, but people do not have to follow the examples.

Complaint about neighbours metal flue

  1. Mr X complains about the Council’s response in November 2018 to his complaint about his neighbour’s installation of a wood burner and associated metal flue.
  2. I have looked at the information provided and can find no evidence of fault on this point. An approved installer carried out the work and the Council told Mr X that he needed to contact the installer or HETAS if he considered the flue was not acceptable for the original height of his roof. The Council has confirmed that it has received a HETAS certificate from the neighbour for the work.
  3. When Mr X finished his building work, which included bedrooms in his roof space, he complained that smoke was entering the roof.
  4. In response to my enquiries the Council has said ‘in respect to the original height of the new metal flue, this installation appears to have been self-certified in respect to compliance with the requirements of the regulations and it is not for the Council to challenge this without detailed information as to why the installation is not compliant. As outlined above, not following the advice of the approved document is not enough when the installation has been certified as compliant by a duly authorised person. The conditions surrounding such a device are materially different to those surrounding a chimney, not least because combustion is usually more complete. In this case, the Council is likely to advise the owner that Mr X’s construction has altered the situation for the flue, and that they should engage the services of a suitably qualified and experienced individual to advise as to the safety of the installation’.
  5. Clearly Mr X should have formally complained to HETAS about the installation in November 2018, to find out if the installation complied with building regulations. Mr X did not do this and decided to make his complaint to the Council instead. He complains the metal flue does not comply with the certain parts of the building control approved documents.
  6. The approved documents give examples of how the Building Regulations can be met, but these examples do not have to be followed. i.e. even if the flue is not a certain distance above the roof the installer may have done something else to make it compliant with part J2. Part J2 says that combustion appliances shall have adequate provision for the discharge of products of combustion to the outside air.
  7. In this case the approved installer has confirmed the metal flue was compliant before Mr X converted his loft space. Not following the example in the approved documents is not, by itself, enough evidence of non-compliance with the regulations. So, I can find no fault in the Council’s decision not to investigate Mr X’s complaint about the metal flue further.

Complaint about brick chimney

  1. Mr X and his neighbour share a brick chimney stack with two chimney pots on top, one for each house. As part of the works to his property, Mr X raised his half of the brick chimney and chimney pot. It is now taller than the top of his neighbours chimney pot.
  2. The Council says that regulation 4(3) of the Building regulations says ‘where a situation was not considered compliant before the works, the works will be acceptable so long as they do not result in the non-compliance being worsened’.
  3. The Council says ‘the level of compliance is made worse by Mr X extending half the chimney. For the chimney to be acceptable it would need to be returned at least to a condition similar to that which existed prior to the works. The Council would consider Mr X undertook the works to the chimney and so it is his responsibility to ensure compliance, altering his design if his neighbour will not agree to increase his part of the shared brick chimney’.
  4. I can find no fault in the Council’s response to concerns about the brick chimney. Mr X altered the existing brick chimney so I can see no evidence of fault in the Council’s decision that it is him who needs to ensure compliance.

Conduct of the building control officer

  1. Clearly Mr X has strong views about the conduct of the building control officer. He has said that he feels threatened by the Council saying it may take action to prosecute him.
  2. My view is the Council is entitled to consider prosecution and to make Mr X aware that this is possible. It is clear the Council considers the best outcome would be for the height of Mr X’s neighbour’s brick chimney to increase but it has no power to require the neighbour to do this. So, I can see no bias in the Council’s decision making, it simply cannot enforce the outcome Mr X wants, for his neighbour to increase his brick chimney. It is not the fault of the Council there is a dispute between Mr X and his neighbour. I cannot see what more the Council can do. The Council’s only formal option is to prosecute Mr X but it can see that ideally his neighbour would raise their chimney. Unfortunately, if Mr X’s neighbour does not agree to this, Mr X will have to consider another method of dispute resolution as the Council does not have the powers to achieve the outcome he wants.

Planning enforcement

  1. Mr X complains the building control officer asked the planning department to check if his extension was built as shown on the plans. While I note Mr X had to take a day off work, I cannot see why the Council would compensate him for this. If the building control officer or the neighbour thought the extension was not built as shown on the plans, then they are entitled to have their concerns investigated. I understand there was no breach of planning control, but this does not mean the complaint was unjustified. So, I find no fault on this point.

Building Control Approval Process

  1. Mr X has complained the Council took over a year to approve his second building control application. I can see no evidence of fault on this point. Mr X has a copy of the second application dated 26 October 2018, but the Council did not receive it. When the Council did receive the application in October 2019, it approved it within the two month timescale.
  2. In his complaint to the Ombudsman, Mr X said that ‘the building control team have attached a condition to my building regulations approval to resolve the chimney issue, which is unlawful as the chimney they refer to sits on his neighbours bungalow’.
  3. The Council has said that this is not the case. The Council says the drawings Mr X put in did not show his neighbours brick chimney. It has said that Mr X’s building control approval is subject to a condition that ‘outstanding construction details of chimney are submitted and approved before work commences’. Mr X says he could not comply with this condition as he had already started work.
  4. I can find no evidence of fault by the Council on this point. The Council approved the application, subject to details of the brick chimneys. The onus was for Mr X to comply with the condition and he chose to start building work before ensuring his building regulation application had been approved. It is unfortunate the application was lost, but I would have expected Mr X to chase it up quickly at the time rather than waiting for a year. Mr X agreed on the application form to a conditional approval from the Council.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is not upheld as I have found no evidence of fault.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X's complaint about the Environmental Health Department. I have seen no evidence that Mr X has put his complaint directly to the Environmental Health department or that the Council has had a chance to respond to an official complaint on this matter. This part of the complaint is premature, as I have seen no evidence the Council has had a chance to consider the points Mr X raises.

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Investigator's decision on behalf of the Ombudsman

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