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Medway Council (20 003 650)

Category : Planning > Building control

Decision : Not upheld

Decision date : 24 Feb 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council delayed in investigating her concerns about works undertaken at a neighbour’s property. There is no evidence of fault in how the Council investigated Mrs X’s complaints about works carried out by her neighbour.

The complaint

  1. Mrs X complains that:
  1. The Council delayed in investigating her concerns about works at a neighbour’s property which she considers may have affected the structural stability of her property and did not keep her informed of the progress of their investigation. Mrs X says the delays and lack of information caused anxiety and distress to her and her family.

 

  1. The Council breached the General Data Protection Regulations as it disclosed that she had made a complaint about the building works to the managing agent of the property.

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What I have investigated

  1. I have investigated complaint a). I explain my reasons for not investigating complaint b) at the end of this statement.

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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 have:
  • Considered the complaint and the information provided by Mrs X;
  • Discussed the issues with Mrs X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Councils’ duties

  1. Councils have a general duty to enforce building regulations in their area and will do so by informal means wherever possible. Compliance with building regulations can be certified after the work is done by a council’s building control service. This is known as a regularisation application.

What happened

Investigation into complaint of breaches of building regulations.

  1. Mrs X lives in a terraced property and has long running concerns about works undertaken at her neighbour’s property. This investigation considers events from 2019.
  2. In 2019 Mrs X contacted the Council to report her neighbour had installed new windows and she was concerned about the safety of the installation. She sent a photograph of the works to the Council which showed the installation of the window and render missing. The Council’s community safety team and Mrs X’s councillor also reported her concerns about the windows and other works.
  3. The Council’s building control service is provided by South Thames Gateway Building Control (STG). STG’s procedure for investigating potentially unauthorised works is to contact the owner or occupier to arrange to inspect the works to see if they require building regulations consent. If so, STG will advise the owner or occupier regularises the breach. STG will not take legal action to enforce a regularisation of breaches of building regulations unless there is a safety issue.
  4. STG considered the installation of the windows could have been caried out under the Competent Persons Scheme which is a Government scheme whereby registered people can self certify that their work complies with building regulations.
  5. STG did not receive notification that the work had been carried out under the Competent Person’s Scheme so officers arranged to visit the property in July 2019. Officers were unable to gain access so sent a letter to the management agents and owner of the property to arrange access. They did not respond. The Council then spoke to the management agent to establish what works had been carried out and to arrange access.
  6. STG then issued a section 95 notice to the owner as it had not received contact about access. The notice advised officers required access to the property in late August 2019 and could apply to the magistrates court to authorise entry if denied by the owner. Officers attended the property but again could not gain entry. In September 2019 STG warned the owner it could take legal action to gain access.
  7. STG officers gained access to the property in early October 2019. They found the windows were the only works which required building regulations consent. Other works did not require building regulations consent. In January 2020 the owner of the property submitted an application to regularise the position. STG officers carried out a further visit to the property to inspect the windows and were satisfied they complied with building regulations. STG issued a regularisation certificate in late January 2020.
  8. In response to my enquiries STG has said it does not consider the window replacement works have affected the stability of Mrs X’s property. It has also said STG do not generally correspond with notifiers of breaches unless the works have a direct impact on them such as causing damage to their properties. There is no timescale for investigations as the time is determined by the risk posed by the potential breaches.

Complaint

  1. In August 2019 Mrs X made a complaint to the Council as she considered it had not taken appropriate action to deal with nuisance caused by her neighbour’s building works over a number of years.
  2. The Council’s records show it responded to Mrs X’s complaint on 15 August 2019 by email. In May 2020 Mrs X’s councillor contacted the Council to seek an update as Mrs X said she had not received a response. Mrs X has said had received the Council’s response of August 2019 but was seeking an update as the Council had not informed of the outcome of its investigation. The Council sent a copy of the building control’s response to Mrs X. She requested her complaint be escalated to stage two of the complaints procedure. The Council did not uphold Mrs X’s complaint although it acknowledged it would have been beneficial to have notified Mrs X of the outcome of the inspection of her neighbour’s property.

Analysis

  1. There is no evidence of fault in how STG investigated Mrs X’s concerns about breaches of building regulations at her neighbour’s property. The evidence shows STG caried out an inspection of the works to determine if the works required building regulations consent. It also carried out a further inspection of the works to determine if they were in accordance with building regulations when considering the application to regularise the works. So, I am satisfied STG have investigated and taken appropriate action regarding Mrs X’s complaint about her neighbour’s works.
  2. There is no evidence of delay in STG’s investigation. The time taken was caused by officers being unable to gain access to the property and in having to wait for the owner to submit a regularisation application. The evidence shows officers contacted the owner to arrange access several times and to encourage the submission of a regularisation application. It is also usual for councils to seek access and compliance with building regulations informally rather than taking legal action. So, I am satisfied there is no evidence the Council let matters drift and there is no evidence of fault.
  3. Mrs X remains concerned the window installation works could have affected the structural stability of her property. STG considers the works will not have affected the structural stability of Mrs X’s property. STG reached this view after inspecting the property and satisfying itself the window replacement works complied with building regulations. So, I have no grounds to question its professional judgement that the window replacement works will not have affected the structural stability of Mrs X’s property.
  4. The Council, in its response to Mrs X’s stage two complaint, acknowledged it would have been beneficial to have notified Mrs X of the outcome of the inspection. I am mindful that Mrs X and her family were caused distress by not knowing if the works had affected the stability of their property. It would have been better for the Council to have updated Mrs X. But, on balance, this does not amount to fault. This was in accordance with STG’s usual policy which is to only inform notifiers of the outcome of its investigation if the works have a direct impact on a person’s property. While I understand Mrs X was very concerned about the impact on her property, the window in question is in an elevation not attached to her property so was not directly damaging her property.

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Final decision

  1. There is no evidence of fault in how the Council investigated Mrs X’s complaints about works carried out by her neighbour. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X’s complaint about the Council breached the General Data Protection Regulations. The Information Commissioner considers complaints about breaches of the General Data Protection Regulations so it is reasonable to expect Mrs X to make a complaint about this matter to them.

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Investigator's decision on behalf of the Ombudsman

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