Summary: The Ombudsman will not investigate this complaint about how the Council has dealt with Mrs X’s concerns about a sewage treatment plant. This is because parts of the complaint are late, and it is unlikely an investigation by the Ombudsman could achieve the outcome the complainant wants.

The complaint

1. The complainant, whom I shall refer to as Mrs X, has complained about how the Council has dealt with her concerns about a sewage treatment plant installed by her neighbour. She says the treatment plant does not comply with building regulations and was built without planning permission. Mrs X says it is causing damage to her property.
2. Mrs X has also complained about how the Council has dealt with her planning application to erect a fence.

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The Ombudsman’s role and powers

3. 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.

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

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I have considered Mrs X’s complaint and the Council’s responses. I invited Mrs X to comment on a draft of this decision and have considered her concerns in response.

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What I found

6. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action.
7. Most building work will require building regulation approval. The regulations will set the standards for design, construction and ensure the health and safety of the people living in or around the building. The Council will normally visit the site at various stages of the build. But councils do not act as a clerk of works and the responsibility for compliance with the regulations rests with the building owners and builders. The Council’s role is to maintain the building standards for the public in general rather than protect the private interests of an individual.

What happened

8. In 2018, Mrs X’s neighbour raised the ground levels in their garden and installed a sewage treatment plant. Mrs X complained to the Council about a possible breach of planning control. The Council looked into Mrs X’s concerns and said the treatment plant did not require planning permission. It agreed there had been a planning breach in relation to the changes to the ground levels but decided it was not expedient to take formal enforcement action.
9. In 2019, Mrs X contacted the Council again to raise concerns about the sewage plant as she believed it was causing damage to her property. She also raised concerns about noise and odours from the plant and the Council’s environmental health officers are investigating these matters.
10. In 2020, Mrs X applied to the Council to extend her property and to erect a fence to provide screening from the sewage treatment plant. The Council has granted permission subject to conditions.

Assessment

11. I will not investigate Mrs X’s complaint about how the Council dealt with her concerns about the sewage treatment plant. This is because parts of the complaint are late. It is also unlikely the Ombudsman could achieve the outcome Mrs X wants.
12. Mrs X has complained about the Council’s decision not to take enforcement action in relation to the possible planning breaches. However, Mrs X has known about this issue since 2018 and therefore complaints about this matter are late. A complaint is late if it has taken someone more than 12 months to complaint to the Ombudsman.
13. Mrs X has also complained that the sewage treatment plant is causing damage to her property. However, the Ombudsman would not usually investigate complaints about damage to a person’s property. This would be a private civil matter between Mrs X and her neighbour.
14. I understand Mrs X says the sewage plant does not comply with building regulations and building control officers signed the works off in error without carrying out proper checks. But the primary responsibility for building works rests with those who commission it and those who carry out the work, not the Council. Furthermore, the courts have held that councils are not liable for pure economic loss arising from a failure to ensure compliance with building regulations. The Ombudsman takes the same view as the courts in this regard.
15. I have not considered Mrs X’s complaint about how the Council dealt with her planning application. The law says that before investigating a complaint, we must normally be satisfied that a formal complaint has been made to the Council and it has been given an opportunity to consider it and reply. The Council has confirmed it has not yet dealt with this matter through its formal complaints process.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because parts of the complaint are late and an investigation by the Ombudsman cannot achieve the outcome the complainant wants.

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Investigator's decision on behalf of the Ombudsman