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London Borough of Bromley (20 013 206)

Category : Planning > Building control

Decision : Not upheld

Decision date : 19 Jan 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failure to address concerns about his neighbour’s development. He said it did not comply with building regulations or its planning permission and created a potential risk of fire and water damage to his property. We do not find the Council was at fault because it considered Mr X’s concerns but reached a different conclusion to him about the development’s compliance with building regulations and planning permission.

The complaint

  1. Mr X complains that the Council has failed to address concerns about a neighbouring development’s non-compliance with building regulations (specifically about fire safety and drainage). He also says the development has not been built in accordance with its planning permission.
  2. He also complains about the Council’s poor complaint handing in respect of this matter.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 spoke with Mr X and reviewed the information provided.
  2. I made enquiries with the Council, considered its response and reviewed the relevant law.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and policy

Building control

  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 to carry out this work.
  3. The Building Regulations 2010 (“the Regulations”) include standards regarding external fire spread and rainwater drainage. Both are relevant to Mr X’s complaint.

Enforcement

  1. If a person carrying out building work contravenes the Regulations, the local authority may serve an enforcement notice on the building owner requiring alteration or removal of work which contravenes them.

What happened

  1. In May 2020, Mr X contacted the Council to raise concerns about his neighbour’s recently built garage. This had been the subject of a retrospective planning application. Mr X was of the opinion it did not satisfy the Regulations in respect of fire safety and water disposal. He also says the garage was built differently to the approved plans included with the planning application.
  2. He explained the garage canopy extended to his boundary and so posed a potential fire risk. He also highlighted a new surface water drain with an outlet on the garden surface close to the boundary alongside his house. He said this was not included in the approved plans. Mr X was worried about discharge of water causing damage to his property.
  3. The Council disagreed with Mr X’s conclusion and advised him that any issues he had with his neighbour’s property were a civil matter between the two parties. The Council confirmed it had issued a completion certificate for the works and the matter was closed.
  4. In August 2020, Mr X made a formal complaint to the Council about this decision, as well as the critical and accusatory tone of the Council’s response. In acknowledgment the Council said it would reply by 21 September 2020 but did not do so until March 2021, six months later. The Council’s response was brief and said it could not add anything further to its previously stated position.
  5. Mr X was dissatisfied by what he considered an inadequate response. A senior officer provided more detail in a further complaint response in April 2021. He made the following points:
  • Boundary disputes and party wall grievances fell outside of the remit of building control.
  • Ongoing inspections of the development had not raised any concerns so far in relation to building control compliance.
  • A formal completion certificate had not been issued and any areas of non-compliance regarding drainage would be addressed as part of the building control process.
  • The Council was satisfied the canopy fell within the allowable unprotected area and so did not represent a fire risk under the Regulations.
  1. Mr X remained of the view the Council’s decision was based on incorrect information and was therefore wrong. Mr X’s main concern that the Council’s assessment was not based on the garage as currently built which included features not included within a previous building control notice and to those plans approved during the retrospective planning application. Mr X says the canopy, as built, extends beyond the permitted 1m square.
  2. He also explained the garage, in some respects, was different to the plans. In particular, the water disposal was not the same, having the effect that the discharge water flowed directly onto his property.
  3. As he had exhausted the Council’s complaints procedure, Mr X brought his complaint to the Ombudsman.

The Council’s response to the Ombudsman’s enquiries

  1. The Council was asked to comment on Mr X’s concerns about his neighbour’s garage. In response the Council made the following points:
  • The Council’s assessment was based on the plans rather than from a site visit, but this was a reasonable approach for it to have taken.
  • Even if Mr X’s own, on-site measurements were correct, the canopy was still compliant with the Regulations.
  • The Council had considered Mr X’s concerns about surface water drainage but remained satisfied that the guttering and downpipe shown on photographs dispersed water into a soakaway on the neighbour’s property. The case notes from 2014 records a discussion about the soakaway but nothing to confirm it had been inspected by an officer recently.

Analysis

  1. The primary responsibility for building work rests with those who commission it and those who do the work. When carrying out their functions, councils may visit at various stages, but they are not required to do so. 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 there is damage to Mr X’s property, he should seek redress in the courts.
  2. In this case, the Council has satisfied itself that the garage, met the required standards of the relevant Regulations. The Council has provided a technical explanation that I will share with Mr X. This is a decision for the Council to take and its merits are not open to review by the Ombudsman no matter how strongly Mr X may disagree with it.
  3. I appreciate Mr X is frustrated that the Council has made its decision without conducting a recent site visit to inspect the development. He believes this would prove its assessment was based on inaccurate plans. In the absence of a legal requirement to do so, I am unable to criticise the Council for not carrying out an in-person inspection.
  4. In the context of its building control function, an assessment based on the plans is sufficient.
  5. In any event, the Council has considered what Mr X has said about the reality on site and has said this would not affect its position. It has confirmed that both the canopy and drainage are compliant with the Regulations.
  6. In addition, the Council has confirmed a certificate has not yet been issued and any areas of non-compliance will be addressed with Mr X’s neighbour directly. The Ombudsman cannot interfere with this process.
  7. There was a significant delay of six months in responding to Mr X’s complaint. While this is disappointing and understandably frustrating to Mr X, I do not consider it sufficiently relevant to the substantive issue to warrant a finding of fault on this alone. I would however encourage the Council to remind officers of the need to respond to complaints in a timely manner.

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Final decision

  1. I have completed my investigation. I have not found the Council to be at fault in the way it responded to Mr X’s concerns about his neighbour’s garage.

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Investigator's decision on behalf of the Ombudsman

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