Summary: Mr X complained the Council refuses to take enforcement action to protect him from his neighbour’s boiler flue. The Ombudsman will not investigate this complaint. We are unlikely to find fault in the Council’s actions. Nor can we achieve the result Mr X is seeking.

The complaint

1. Mr X complains the Council has misinterpreted guidance and is refusing to take enforcement action under the building control regulations against his neighbour’s boiler flue.
2. He says position of the flue does not follow the regulations. It discharges a plume over his property. This means he cannot open the lower half of one of his bedroom windows. Nor can he allow his daughter to sleep in the room.
3. Mr X wants the Council to direct his neighbours to reposition their plume management kit terminal to conform with Building Regulations.

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The Ombudsman’s role and powers

4. 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
• we cannot achieve the outcome someone wants

5. 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)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read:
• the Council’s response to the complaint
• parts of the Building Regulations 2010 on combustion appliances; and
• the letter from Gas Safe to Mr X
7. Mr X commented on the draft version of this decision.

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What I found

8. The Building Regulations 2010 cover constructing and extending buildings. The purpose is to ensure public safety.
9. Developers must follow building regulations and inspections may be made by councils or private inspectors. A specialist trades person (e.g. for windows or boilers) may be registered as a ‘competent person’ for building regulations purposes.
10. Building regulations contain guidance and details of best practice, but enforcement action is discretionary. Therefore, it is up to Council Building Control Officers whether to enforce the regulations. Councils should not interpret guidance as if it creates binding rules: they should always prepare to exercise discretion. The government advises councils should only use enforcement powers if a breach causes or is likely to cause significant harm or risk of harm.

What happened

11. Mr X complained to the Council that his neighbour’s boiler flue had been repositioned too close to his boundary. The boiler flue was originally fitted by a registered, competent person.
12. Council officers inspected the property and acknowledged the boiler flue’s position does not meet with guidance, but in their view, it did not cause a significant risk.
13. Mr X disagrees with the Officer’s judgement. He has provided a copy of a letter from Gas Safe which says:

“A neighbouring flue terminal that appears to be the type normally fitted to a gas central heating boiler appears to be sited in a manner that contravenes the minimum specified distances to the boundary line of your property. The British Standards and Building Regulations documents, which provide guidance on termination of gas flues state that; ‘a flue duct outlet of an appliance shall be sited to that it is at least 600mm from a boundary line when facing it and at least 300mm from the boundary line when running parallel to it.”

14. Mr X believes the Council should use its powers to require his neighbour to move the flue.

Assessment

15. The Ombudsman is not an appeal body to council decisions. Our role is to review the process by which decisions are made and, where we find fault, to consider whether it caused a significant injustice.
16. From the information I have seen the Council has inspected the property. The professional opinion of its officers is the flue is safe. However, it says officers have contacted Gas Safe asking for confirmation on interpretation of relevant regulations. And whether removal and refitting of the flue head by a non-registered person would invalidate the gas safe certificate. Should it receive information to the contrary, I expect the Council to take appropriate action.
17. The Council has discretion on whether to use its building regulation enforcement powers and in considering the circumstances and its statutory powers. Its role is to protect the public, and its officer’s opinion is the public is not at risk. Having inspected the property, considered the guidance, and sought advice, this is a judgement it entitled to make.

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Final decision

18. I will not investigate this complaint. We are unlikely to find fault in the way the Council made its decision not to take enforcement action. Nor can we require the Council to direct Mr X’s neighbour to reposition the flue.

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Investigator's decision on behalf of the Ombudsman