Summary: Ms X complained the Council failed to use its building control powers to protect her amenity. Ms X also complained about the Council’s refusal to investigate her complaint. There was no evidence of fault in the way the Council made its building control decisions, but there was fault in the way it handled her complaint. The Council has agreed to remedy the fault I have found.

The complaint

1. Ms X complained the Council failed to use its building control powers to protect her amenity, after her neighbour carried out alterations. Ms X says that since a chimney breast was removed, she said her privacy is reduced and she is disturbed by noise through the party wall.
2. Ms X also complained about the Council’s refusal to investigate her original complaint. Ms X says that if the Council had responded to her complaint, she might not have found it necessary to complain to the Ombudsman.

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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. 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

4. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint, and relevant building regulations and guidance.
5. I gave Ms X and the Council an opportunity to comment on a draft of this decision and took account of their comments before making a final decision.

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What I found

Building regulations

6. 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.
7. 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.
8. There are three 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.
• Regularisation application. The owner or their agent seeks approval from a council BCO, after the work is completed. If the BCO agrees the work complies with the regulations, they will issue a certificate.
9. 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.

What happened

10. Ms X’s neighbour carried out alterations to their home, which included removing a chimney breast. Ms X shares a party wall with the neighbour but said there is no party wall agreement between her and her neighbour. Party wall agreements relate to the rights between adjoining landowners and are not enforced by councils.
11. Ms X complained to the Council about works that she believed had caused an increase in noise through the party wall. Including removal of a chimney breast and a failure to replace plaster removed from the party wall.
12. The Council said that because this was not a new build or change of use of the property, it could not require retrospective improvements to modern noise insulation standards. It said its control was limited to:
• the structural safety of the building;
• fire safety matters; and
• use of the chimney flue for ventilating other properties.
13. The Council said that work on the wall near Ms X was completed some time ago, but it was still awaiting confirmation regarding use of the flue for ventilation. The Council’s building control officer said the plaster was removed but it was replaced. However, the Council said it can include inspection of the wall in its next inspection.
14. After I spoke to Ms X about her complaint, she sent me excerpts from the relevant building regulation document and the general guidance on building regulation control. Ms X suggested paragraphs which in her interpretation, showed the Council should have required measures that would provide further noise protection. Ms X also complained that the work is non-compliant with the regulations, because the building has not returned to the standard it was before the works were undertaken.
15. Ms X also complained about how the Council dealt with her during the complaint process. Ms X was told it could not investigate a building regulation complaint, because it had no jurisdiction over enforcement matters. Ms X said that if she had received a proper explanation, she might not have found it necessary to complain to the Ombudsman.

My findings

16. I found no evidence of fault in the way the Council made its decisions. My reasons are as follows.
17. The Council has followed the decision-making process we would expect. It considered the circumstances on the site, its powers under the regulation and Ms X’s complaint. It decided it has no power to require the neighbour to make noise protection improvements on the wall between the properties.
18. I considered the regulations, the guidance, and Ms X’s comments, but found no evidence to show the Council was wrong to reach its conclusion.
19. It is important to note, that we are not a court and cannot determine what the law should be in situations like this. Our role is limited to ensuring the Council has followed the right process, which in this case will include consideration of its regulatory powers. In any event, the Council intends to return to the site, and it is possible it may use its powers to require further improvements which have the effect of reducing noise.
20. There was evidence of fault in the Council’s response to Ms X’s original complaint. This is because it said it was unable to register a complaint because it had no jurisdiction over enforcement matters.
21. I accept Ms X has no right of appeal against the Council’s building control decisions, but it can and should have reviewed its decision-making process. If it had done this and found fault, it might have rectified it, learnt from it or provided a remedy for Ms X.
22. I have reviewed the building control decision-making process and found no evidence of fault in the decisions made so far. However, I accept that Ms X might not have found it necessary to complain to us. The Council has accepted my findings and has agreed to remedy the fault I have found.

Agreed action

23. To remedy the fault I have found, the Council has agreed to:
1. apologise to Ms X for not investigating her complaint;
2. pay her £150 for her time and trouble in bringing her complaint to the Ombudsman; and
3. remind its officers who deal with complaint handling that it may review the decision-making process of complaints in situations like this.
24. The Council will carry out the remedy within six weeks from the date of this final decision.

Final decision

25. I found evidence of fault which the Council should remedy. l completed my investigation because the Council agreed to accept my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman