Summary: Mr X complains the Council is responsible for a defective sewer connection from his home to the public sewer system. We will not investigate this complaint. We cannot decide whether the Council is liable for the error and if so whether it should pay damages. This is a matter for the courts.

The complaint

1. The complainant, who I shall call Mr X, says the Council either:
• connected his foul sewer pipe to the surface water sewer when it carried out improvement works to its Council owned properties before 2000; or
• instructed his builder to connect foul sewerage pipes for his extension to the public wrong public sewer in 2004.
2. He says a recent water company survey has revealed his foul sewer pipe connects to the public surface water sewer. It requires this to be redirected to the foul sewer as soon as possible.
3. Mr X says this will cost £3,000 and believes the Council should arrange for the work to be carried out and pay all associated costs.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• we cannot achieve the outcome someone wants
• there is another body better placed to consider this complaint

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

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How I considered this complaint

7. I considered the information provided by Mr X and the Council’s responses to his complaint.
8. Mr X had the opportunity to comment on the draft version of this decision.

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What I found

9. Most building work needs Building Regulation approval. The Regulations set requirements and guidance for the design and construction of buildings and ensure the health and safety of people in and about those buildings.
10. Building Regulations approval can be obtained by:
• A Full plans application which provides the most thorough checks. The building owner or their agent puts in plans for approval. Inspections take place on-site by an Inspector for compliance with the Regulations. The Council will issue a completion certificate within eight 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 achieved.
• Compliance with Regulations can also be certified after the work is done, but only by a Council Building Control service.
11. The courts have decided that Council building control authorities are not liable to ensure compliance with building regulations. The duty to follow regulations lies with the builder and building owner. It may be possible to take legal action for the consequences of poor or non-compliant work against their contractor, architect, or builder.
12. Councils should not be seen as a ‘safety net’ for when things go wrong, nor are they liable for poor or unlawful building work. Council compliance certificates do not guarantee works meet with the Regulations. Their role is to maintain building safety for the public in general, not to protect the private interests of individuals.

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What happened

13. Mr X moved into his home as a Council tenant in 1989. He says that during 1989/1990 the Council carried out improvement works to its housing stock, including his home. This included replacing the toilet, toilet waste pipe and connecting the pipe to the public foul sewer.
14. In 2003/4 Mr X bought his home from the Council. He built a kitchen and bathroom extension. He says the work to the foul sewer connection was designed, ordered, inspected and approved by the Council’s Building Control Inspector.
15. Mr X says the Inspector refused to allow his builder to install a previously agreed manhole. Instead, he says the Inspector required the sewer connections to be designed to certain specifications. He also says the Inspector instructed which public sewer pipe they should connect to. The Council signed off the work.
16. Recently, the local water company carried out surveys of the public sewerage system. It discovered the foul sewerage pipe for Mr X’s home is connected to the surface water public sewer. This is causing water contamination and the company is demanding the foul pipe be redirected to connect with the foul sewerage public sewer.
17. Mr X complained to the Council. He says the connection to the wrong sewer was carried out either:
• by the Council as part of its improvement works to the property when it was in Council ownership, or
• on the order of the Council’s Building Control Inspector. He says the Council should arrange for the remedial work and pay for it.
18. In response to his complaint, the Council says it has reviewed his correspondence, checked its records, spoken to relevant staff and consulted with its legal department.
19. It confirms that works to improve its housing stock in 1989/1990 were completed by Local Government contractors. Such work is not usually subject to Building Control regulations. The Council says it has no records of building control applications for the work, so this appears to be the case here.
20. The work carried out when Mr X built his extension began in 2003 and finished in 2004.was subject to a full plans building control application.
21. The Council says the architect commission by Mr X to draw up the plans for the extension would have been responsible for providing the Council with an accurate drainage plan. And detailing the materials and the design of any changes to the drainage arrangement. It confirmed the plans would be subject to the Council’s approval, but not ordered by the Council. It advises the drainage may have been installed in the current arrangement as part of previous work carried out at the property. Therefore, the architect would have considered it to be the established drainage system.
22. The Council does not agree the Building Control department was incompetent when it approved the plans for the drainage for Mr X’s extension. It told Mr X that whoever is responsible for connecting the foul sewer pipe to the public surface water sewer did so at least 17 years ago. It quotes section 1 of the Latent Damage Act 1986, which imposes a time limit of 15 years from the date of the claimed negligence. Therefore, it refused Mr X’s request for it to carry out and pay for the remedial work needed.

Assessment

23. Mr X contends the architect was not responsible for designing the drainage system. He says his records show the Council confirmed no access is available on-site to the drain. Therefore, the drains were checked during construction and a dye test completed. The Building Control Inspector ordered his builder to connect the foul sewerage pipe to whichever pipe the dye came out from.
24. Mr X asserts the Building Control Inspector personally redesigned the foul sewer connection on site during construction. He also says the Inspector told his builder that he would not issue a completion certificate unless the sewers were connected according to his personal specification.
25. Mr X say the information he has in his possession and his recollection of meetings which took place 17 years ago, proves:
• the connection was made either on the direct instruction of the Council’s Building Control Inspector; or
• before he bought the house when improvement work was carried out to Council owned housing.

Either way, he says the Council should pay to have the faulty work corrected.

26. However, the Council has confirmed that it cannot decide whether the error occurred as part of the extension work in 2003/4 or earlier. From the information available it appears if the Inspector witnessed the dye test carried out in 2003/4, normal procedure would have been to connect the existing system. The Inspector may not have been aware of earlier changes or connections to the wrong public sewer.
27. The Council is satisfied that any responsibility for damages it may or may not have had for the incorrect connection would have expired after 15 years according to the Latent Damages Act 1986.
28. We cannot determine liability for legal claims. Mr X and the Council disagree responsibility for connecting his foul sewerage pipe to the public surface water sewer.
29. The restriction described at paragraph 5 applies. I have considered whether I should exercise discretion in this case. But I find no reason to do so. It is reasonable for Mr X to make a claim against the Council if he believes its negligence has damaged his property and remedial action is required to correct the matter. He can make his claim to the Council’s insurers. If no liability is accepted, he can apply to the small claims court.

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Final decision

30. I will not investigate this complaint. We cannot decide whether the Council is liable to pay for the cost of correcting the sewerage connection. It is reasonable for Mr X to claim against the Council’s insurers. If this fails, he can ask the court to decide is the Council is liable and if so, whether damages are to be paid.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman