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London Borough of Sutton (20 013 827)

Category : Planning > Building control

Decision : Not upheld

Decision date : 12 Sep 2021

The Ombudsman's final decision:

Summary: Mr C complained about the way the Council dealt with his application to regularise building works which he said led to an unnecessary application fee of £300. We found no evidence of fault by the Council.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complains about the way the Council dealt with his application to regularise building works completed without building regulations approval. Mr C says because of the Council’s fault, he incurred an unnecessary application fee of £300.

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The Ombudsman’s role and powers

  1. 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)
  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 read the papers provided by Mr C and considered some information from the Council. I have provided a copy of the Council’s information to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

  1. Councils’ powers to control building safety are found in the Building Act 1984, 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.
  2. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings. 
  3. Building Regulations approval can usually be obtained in one of three ways:
  • Full plans application. This option provides the most thorough checks. The building owner or their agent submits plans for approval. Building work is checked on site by an Inspector for compliance with the Regulations. The Council will issue a completion certificate within 8 weeks which states the work is compliant with the Regulations. If the work is not compliant, the Council will issue advice on how it can be made so.
  • Building notice application. This option is used for smaller works, like house extensions. Notice of commencement of building work is given at least 2 days before the work begins. The various stages of the work are then inspected and approved but no plans are checked.
  • Regularisation application. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service
  1. 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. The Council can also insist the building owner pays for the costs of making the building safe.
  2. 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 the majority of the project. Councils are not expected to act as a site manager or ‘clerk of works’. Individuals who want this level of supervision of their builder can employ their own site manager.
  3. 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

Key events

  1. Mr C says he telephoned the Council in October 2020 about works he had completed without an application for Building Regulation approval as he needed the relevant paperwork. Mr C says he was told to make an application for a regularisation certificate.
  2. The Council has confirmed Mr C spoke to a business support officer who explained the process to regularise any breach of Building Regulations. The Council has further explained the business support team are not qualified surveyors and would not have been able to provide a professional opinion about the acceptability or otherwise of Mr C’s works.
  3. Following the above telephone conversation, Mr C applied to the Council in November for a regularisation certificate. This described the completed works as the removal of a chimney breast at ground floor level and first floor level leaving the stack above intact with a timber support installed. Mr C stated the work had been completed in early May 2015.

  4. The Council’s website lists the main notifiable works for building control approval which includes chimney breast removal. The cost would have been £288 if Mr C had notified the Council before the works had been completed. The cost for a regularisation certificate is £300.The information provided includes the different types of applications including regularisation and is clear that work must be inspected and proof of compliance provided. This also sets out the schedule of visits the applicant needs to book at each stage (with a specific example for chimney breast removal). The information makes clear that regularisation is a retrospective process to avoid prosecution which may well involve exposing works.
  5. Mr C booked an inspection visit towards the end of December. The Council contacted Mr C to explain a site visit was not required and he could provide photographs of the works instead. Mr C says he told the surveyor during this conversation that the support used was timber.
  6. Mr C exposed part of the works and provided photographs to the Council at the end of December. The photographs confirmed that Mr C had used a timber beam to support a brick chimney. The Council confirmed the timber support used was not sufficient and advised Mr C in early January 2021 to contact a structural engineer and provide an alternative proposal for the chimney support.
  7. Mr C contacted the surveyor as he was unhappy to have been asked to expose part of the works and provide photographs when he had already stated the support used was timber. The surveyor explained the purpose of exposing the works was to confirm the support used as owners could be mistaken about the method used and to check if there was more substantial support in place.
  8. Mr C asked about the possibility of removing the chimney stack as an alternative to providing a new support. The Council confirmed Mr C could consider removing the chimney and making good the roof but if he was to provide adequate support for the current works, he would need a structural engineer report.
  9. Mr C sought a refund of his application fee in early January. The Council confirmed it would not provide a refund of his fee as it had established he had used the wrong method to support the chimney and only applied after the work was completed in contravention of the Building Regulations. Mr C said he was seeking a refund of his fee due to poor service and because a second application would be needed for using a steel support. Alternatively, Mr C said he would need to pay a planning application fee for removing the chimney stack as the permitted development rights had been removed. The Council noted there was no need for a further application to use a steel support which could be done as part of his current application.
  10. Mr C made a formal complaint to the Council in early January. The Council acknowledged Mr C’s complaint and provided a substantive reply in early February. This explained Mr C’s conversation in October had been with a business support officer rather than a qualified surveyor and the advice to apply for a regularisation certificate was reasonable. It would only be on receipt of such an application that the Council would then investigate the method used. The professional opinion of the building surveyor was that the method outlined in the application and confirmed on the ground was inadequate. The Council did not uphold the complaint. Mr C sought to escalate his complaint and the Council confirmed in early March that it had nothing further to add to its earlier response and provided the details of the Ombudsman.

My consideration

  1. Based on the information provided, I do not consider Mr C has paid an unnecessary application fee due to some fault by the Council.
  2. Mr C completed works in 2015 without Building Regulation approval. Mr C contacted the Council in October 2020 as he did not have the required paperwork and was advised he would need to make an application for a regularisation certificate. This advice is correct. I would not expect the call handler to confirm whether the method used by Mr C was adequate. This would be a matter for the application process.
  3. The purpose of the application and fee is to cover the cost of the Council checking the work against Building Regulations. If Mr C had applied for Building Regulation approval in the normal way before completion of the works the Council would have required an application with the associated fee of £288. If Mr C had asked about the use of timber supports during this process the Council would have been able to confirm this was not acceptable. Mr C did not do so and completed works without the required Building Regulations inspection and approval.
  4. I also do not consider the Council was at fault in requiring Mr C to expose his completed works during the application process to check the support used despite being told he had used a timber support. The Council has provided cogent reasons for this request. It was not unreasonable for the surveyor to have requested sight of the actual work completed before confirming it was not acceptable and an alternative such as a steel support with appropriate structural calculations was required.

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Final decision

  1. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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