The Ombudsman's final decision:
Summary: Mr B complained the Council had not taken enforcement action under its building control powers. He considers the development next to his home does not comply with the building regulations and has, and will, cause damage to his property. He considered the Council should take action to ensure the building complies with the regulations. There was fault which caused injustice
- I call the complainant Mr B. He complained the Council had not taken enforcement action under its building control powers. He considers the development next to his home does not comply with the building regulations and has, and will, cause damage to his property. He considered the Council should take action to ensure the building complies with the regulations.
The Ombudsman’s role and powers
- 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)
- We must also consider whether any 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:
- further investigation would not lead to a different outcome, or
- we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))
- 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments. decision. I sent a draft of this statement to Mr B and the Council and considered their comments.
What I found
Summary of the relevant law and regulations
- Most building work requires Building Regulation approval. The Regulations (the Building Regulations 2010) set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings. 'Approved documents' give examples of how the Regulations can be met, but the examples do not have to be followed.
- Compliance with Regulations can be certified after the work is done by a Council building control service
- Primary responsibility for building work and compliance with the Regulations rests with building owners and builders. If builders fail to comply with the Regulations, the Council can prosecute them.
- When carrying out their building control functions, councils will normally visit at various stages, but they are not required to do so and will not be present for most of the project. Council officers do not act as a site manager or ‘clerk of works’.
- A Council may inspect work or issue a completion certificate, but this is not a guarantee that all works meet with Building Regulations. The Council’s role is to maintain building standards for the public in general, rather than to protect the private interests of individuals
Summary of what happened
- Mr B lives in a semi-detached property. His adjoining neighbour started to build a single storey extension. Mr B was concerned about the works being done and approached the Council.
- The Council approached the neighbour and visited the site. The neighbour’s agents put in a retrospective building regulation application.
- Over the next few months the Council visited the site a number of times and there was correspondence with Mr B.
- Mr B was not satisfied with the action by the Council and complained. The Council responded to Mr B’s complaint. The Council instructed the legal department about taking formal enforcement action. It has not taken any formal action.
- We do not, generally, consider complaints about alleged damage to property caused by a neighbour’s building work. It 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. A local authority has no part to play in this agreement – it is a civil matter between the neighbours.
- The Council accepted in its responses to Mr B there were delays in it carrying out its building control functions and in its responses to him. It apologised and offered to pay him £250.
- The main issue for Mr B is the safety, and impact on his property, of the works done. As I say above, this is primarily a matter between him and his neighbour. The Council is not satisfied with the works done and does not intend to issue a completion certificate. It decided not to take enforcement action as it cannot be certain that any of the possible breaches would be of concern in terms of public safety. It considers that some of the outstanding matters could be resolved if Mr B allowed access to his property for the works to be done. In respect of a possible breach of the damp proof course it considers the works to the gutter need to be completed before that could be assessed.
- The Council considered the works done and pursued the matters it considered to be of concern. It considered whether it should take enforcement action and explained why it does not consider that is appropriate. I understand Mr B’s view that the Council has the power to take action and that is separate from any private action he could take against the neighbour. But the Council considered it would not be in the wider public interest to take such action and that is the correct basis on which it needs to determine the question. There is no fault in how it reached that decision so there are no grounds for me to investigate further.
- The Council recognised there were failures in its response to the issues and to Mr B and apologised and offered a payment. I understand why Mr B was not satisfied with this but the offer of a payment from the Council is for the specific faults. It is not intended to address the wider concerns Mr B has.
- The Council has already offered to pay Mr B £250 which is a fair resolution of the complaint. It should do this within one month of the final decision.
- There was fault which caused injustice.
Investigator's decision on behalf of the Ombudsman