The Ombudsman's final decision:
Summary: Mrs D complained the Council failed to take action against a developer for damage to her drainage system and contraventions of building regulations. Mrs D says the developer caused damage to her private drainage system which will cost £25,000 to rectify and her septic tank now needs regular emptying and she has spent £4,000 on legal fees. We have found no evidence of fault by the Council.
- The complainant, whom I shall refer to as Mrs D, complains the Council has failed to take action against a developer for damage caused to her drainage system and contraventions of building regulations during building works.
- Mrs D says the developer has caused damage to her private drainage system which will cost £25,000 to rectify and her septic tank now needs emptying weekly or fortnightly and she has spent £4,000 on legal fees trying to resolve the matter. Mrs D says she is also concerned about future responsibility for the impact of her septic tank on local properties given the damage.
- The final section of this statement contains my reasons for not investigating additional concerns Mrs D raised about the Council’s consideration of the original planning application.
The Ombudsman’s role and powers
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
- 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)
- 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)
How I considered this complaint
- I read the papers provided by Mrs D and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs D after removing third party details. I have explained my draft decision to Mrs D and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation
- Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made. The legislative framework of the 'Building Regulations' is principally made up of The Building Regulations 2010 and The Building (Approved Inspectors etc.) Regulations 2010.
- There are two options for getting Building Regulations approval:
- from a Council Building Control Inspector; or
- a private sector Approved Inspector.
- Approved Inspectors are private bodies or individuals who may undertake building control functions. The Approved Inspector and applicant must submit an "Initial Notice" to the Council Building Control service before work begins. Once the notice is accepted, the Approved Inspector is responsible for ensuring building works comply with Regulations. We cannot investigate complaints about how they carry out their work. Approved Inspectors have no enforcement powers: these are retained by the Council’s Building Control service.
- If a person carrying out building work contravenes the Building Regulations, the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes the regulations under section 36 of the 1984 Act. If the owner does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner. An appeal against a section 36 notice may be made to a Magistrates’ Court under section 102 of the Building Act.
Previous complaint from Mrs D
- Mrs D made a previous complaint to the Ombudsman about the Council failing to investigate alleged breaches of the Building Regulations by a developer building on land adjoining her property. Mrs D said the developer had caused £30,000 of damage to her private drainage system.
- We explained we would not investigate the complaint as an approved inspector was dealing with the developer’s ongoing building work and the Council could not intervene while the initial notice remained in force. We also noted that although the Council had the power to take enforcement action and a general duty to enforce the Building Regulations in its area there was no requirement for it to take formal action in every case. Even if a council found a breach of the Building Regulations it would only take action if it decided it was in the public interest.
- We also noted Mrs D’s claimed injustice was the damage to her drainage system and she had been advised this was a private civil matter between her and the developer and only the courts could attribute liability for the damage.
- Mrs D made a new complaint to the Ombudsman after the completion of the works when the Council did not purse a section 36 Notice it had issued under the Building Act 1984.
- The development of the land next to Mrs D’s property was the subject of an Initial Notice and was controlled by an Approved Inspector. This meant the Council had no direct control or supervision of the work undertaken.
- Mrs D contacted the Council once development had started to say the developer had severed the outfall pipe from her septic tank which extended into the development site. Mrs D provided photographic evidence to the Council.
- The Initial Notice served on the Council about the works did not include any alterations to Mrs D’s drainage. The Council issued a section 36 Notice under the Building Act 1984 on the developer for failing to give notice.
- The developer maintained there had been no works to disconnect the existing drainage from Mrs D’s property and that it had offered a free connection to the public sewer as a goodwill gesture which Mrs D had declined.
- The Council has provided me with correspondence with the developer and their legal representatives and other third parties.
- The Council sought further evidence from Mrs D in order for it to consider whether to pursue the section 36 Notice against the developer. The Council sought receipts for the regular removal of the effluent from the septic tank to support the claim that the tank failed at the time of the development. The Council also sought a survey of the existing effluent drainage to determine both the layout and condition of this to confirm where any severance had occurred or if there was an alternative reason for the failure.
- Mrs D could not provide receipts as the effluent removal had been done informally and she did not want to incur the cost of a survey without an assurance about the outcome.
- The Council decided it did not have enough evidence to pursue the section 36 Notice and advised Mrs D accordingly.
- I should explain that the primary responsibility for building work rests with those who commission it and those who do the work. When carrying out their functions, local authorities (or an Approved Inspector as here) will visit at various stages, but they are not required to do so. Local authorities or Approved Inspectors will not be present for the great majority of the project and do not act as a ‘clerk of works’. On request and when satisfied after taking 'all reasonable steps' that the Regulations have been met, they must issue a completion certificate. This is not a guarantee that all works have been done to the required standard. Building Regulations provide a means of maintaining building standards in general, rather than imposing a duty to maintain standards in each case.
The courts have held as an issue of public policy that councils are not liable for ‘pure economic loss.’ It is the Ombudsman’s view that only in exceptional circumstances should he look to impose a duty on councils where the courts have held there should be no liability in law. We will not normally investigate complaints about damage to property caused by a neighbour’s building work. This would normally be a matter for private legal action by the property owner against the neighbour. If work is being carried out, at or near the common boundary of the properties it is possible that a Party Wall Act Agreement should have been made between the neighbours and I understand this was the case here. A local authority has no part to play in this agreement – it is a civil matter between the neighbours.
- In this case the Council could not intervene while the initial notice remained in force. On completion of the works and after receiving Mrs D’s report, the Council issued an enforcement notice under the powers available. The Council subsequently decided not to pursue that notice. My investigation has concentrated on this decision and my role is to decide if the Council properly considered the available evidence when deciding whether to exercise its discretionary enforcement powers.
- The Council has provided evidence it considered information from Mrs D, the developer and their agents as well as other third parties before reaching its decision not to pursue the section 36 notice. Although I am not able to share this third party information with Mrs D, I am satisfied the Council had enough relevant information to reach this decision and it was one it was entitled to reach. I have seen no evidence of fault in the Council’s decision making process that would provide grounds for me to question the decision reached.
- I have completed my investigation as I have found no evidence of fault by the Council.
Parts of the complaint that I did not investigate
- I have not investigated the part of Mrs D’s complaint about the Council’s consideration of the planning application for the development for the reason set out at paragraph 6 above. Mrs D confirmed the decision on the original planning application was made several years ago and she was aware of this at the time as she had made representations as part of the planning process. Mrs D did not complain to the Ombudsman within 12 months of being aware of the planning application affecting her and I do not consider there are good reasons to accept a late complaint.
Investigator's decision on behalf of the Ombudsman