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London Borough of Barnet (20 004 838)

Category : Planning > Building control

Decision : Not upheld

Decision date : 13 Oct 2021

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s failure to ensure her neighbour completed building works. We found no fault, because the Council has no power to require the completion of building work.

The complaint

  1. Ms X complained about the Council’s failure to act against her neighbour, who has not completed building work.
  2. Ms X said the Council’s Building Control Officer was discourteous because she did not introduce herself when she visited the site. Ms X also said that building work is damaging her property and causing her stress.
  3. Ms X also complained that the Council discriminated against her.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)
  3. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
  4. We must also consider whether any alleged fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • any fault has not caused injustice to the person who complained, or
  • any injustice is not significant enough to justify our involvement, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

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

  1. 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 complaint and discussed it with Ms X. I read the Council’s response to the complaint. I considered the scope of planning and building control law.
  2. I gave Ms X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received before making a final decision.

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What I found

Building Control powers

  1. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
  2. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
  3. There are two ways a building owner can get building regulations approval. These are:
    • Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
    • Building notice application. The owner or their agent informs the council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
  4. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.
  5. Council BCOs can serve enforcement notices within 12 months from the date of completion of the building work.
  6. Council BCOs can also act if they consider buildings or structures are hazardous or in danger of imminent collapse.

Planning powers

  1. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
  2. Once development is commenced in accordance with the approved plans, it remains lawful forever and the law sets no time limit for completion of the work.
  3. Council planning authorities have the power to serve completion notices on developers who fail to complete development within a reasonable period. Completion notices only come into effect if they are confirmed by a government minister.
  4. Once confirmed, the effect of a completion notice is to withdraw planning permission so the building cannot be lawfully completed. However, building work that was already constructed up to the date of the notice remains lawful.
  5. This power is rarely used, because it does not achieve the outcome the council normally would want - the completion of the building. It can result in half-built properties that the council has no power to remove.

Human rights and equality law

  1. An individual who believes their human rights are in breach may take their case to a civil court, which will decide the matter. All public bodies must carry out their functions in a way that respects and protects human rights.
  2. When carrying out their functions, public bodies have a duty under the Equality Act 2010 to have due regard for the need to:
    • Eliminate discrimination, harassment and victimisation;
    • Advance equality and opportunity between individuals who share a relevant protected characteristic and others who do not; and
    • Foster good relations between individuals who share a relevant protected characteristic and others who do not.
  3. Our role is not to determine the law, but to consider whether decisions were properly made. We may find fault if we find evidence that shows human rights and equalities issues were not addressed appropriately.

What happened

  1. Ms X’s neighbour had planning permissions granted to build extensions at the side and rear of their home. They also have a lawful development certificate for development in their roof.
  2. Ms X complained that the building work has been going on for several years with no sign of completion. She complained to Council BCOs about this.
  3. The Council says it visited the site 6 times to consider building regulation matters but had no power to require completion of the work. The Council also offered compensation to Ms X for a customer service failure.
  4. Ms X also complained that the Council discriminated against her. Before the Council decided not to uphold Ms X’s complaint about discrimination, it gave her an opportunity to provide evidence, it took account of what she said and considered the law relating to discrimination.

My findings

  1. Ms X complained the Council’s building control service was discourteous to her and failed to require her neighbour to complete development, which she believes might damage her home.
  2. I know of no building control power that would allow the Council to insist upon completion of the development, so I find no fault.
  3. Ms X complains about how an officer dealt with her. While I would not condone any discourtesy, I do not consider I should investigate this part of the complaints further. My reasons for this are twofold:
    • Our main focus is usually on administrative or procedural fault, and this is more a complaint about the behaviour of an individual;
    • Even if there was clear fault in the decision-making process, we generally need evidence of a significant injustice to the individual complainant to justify our involvement and I have seen no such evidence in this case.
  4. Ms X said the Council discriminated against her, but she does not say in what way it discriminated and did not provide evidence to support her allegation. The Council did respond to this part of her complaint and found that she had not provided evidence to support her allegation.
  5. We are a review body. Our role is to decide whether the Council has followed the correct decision-making process before reaching its conclusion. Before the Council decided not to uphold Ms X’s complaint about discrimination, it gave her an opportunity to provide evidence. It took account of what she said and considered the law relating to discrimination. This is the decision-making process we would expect and so I find no fault.
  6. I have not seen anything in the complaint documents to suggest Ms X has complained to or about the Council’s planning authority. The Council’s planners do have discretion to serve a completion notice on any unfinished building. While Ms X could ask the Council’s planners to consider this action, it may not achieve the outcome she wants.
  7. Ms X said the builder has caused damage to her building. This is a private matter, and we would not expect the Council to get involved in a private dispute.
  8. The Council does have power to act if buildings are hazardous or in danger of imminent collapse, but I have seen no evidence to suggest that this is the case here. The Council can serve a notice on the building’s owner or act itself to make the building safe.
  9. Ms X was offered compensation in relation to customer service standards relating to enquiry responses. My focus is on the extent and scope of the Council’s powers to act and protect Ms X and I think it is unlikely that further investigation by me in relation to customer service issues would result in finding a significant injustice that should be remedied.

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Final decision

  1. I completed my investigation because there was no fault in the Council’s decision not to take action to ensure completion of the building work.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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