Summary: Mr X complained the Council failed to carry out satisfactory checks and controls on an individual completing building works to the rear of his property. Mr X says the new building’s wall collapsed causing damage to his garden wall. The Ombudsman discontinued our investigation of this complaint as there is insufficient evidence of fault, and further investigation of the Council would not achieve a worthwhile outcome for Mr X.

The complaint

1. Mr X complained the Council failed to carry out satisfactory checks and controls on an individual completing building works to the rear of his property. Mr X says the new building’s wall collapsed causing damage to his garden wall.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

3. 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)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I have considered all the information Mr X provided. I have also considered the information the Council provided.
6. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
9. Most building work will need building regulations approval. The regulations set standards for the design and construction of buildings to ensure the safety of people in and about the building. The building regulations cover "building work" such as the erection or extension of a building, or underpinning.
10. Local authorities must issue a completion certificate when satisfied that building regulations have been met. However, this is not a guarantee that works are to the required standard. Councils are not responsible for the quality of the building work or the impact of any defective work. This responsibility lies with the builder or the land owner. Losses caused by faulty works including failure to follow the regulations, is likely to be a question of contractual responsibility between the parties (usually the owner and builder) and so ultimately resolved in the civil courts.
11. Councils have an obligation under the Building Act 1984 to deal with dangerous structures in their area. The building control officer will visit the site to determine whether any action needs to be taken to remove any imminent danger.

What happened

12. In 2017, the owner of the land next to Mr X sought planning permission to build a new property on the land. The Council granted the planning permission in 2017.
13. On 31 March 2021, Mr X complained to the Council the development bordering his property had caused damage to his boundary wall. Mr X said the boundary erected by the developers was dangerous.
14. Mr X also contacted the Local Government and Social Care Ombudsman (the Ombudsman) on 8 April 2021. The Ombudsman contacted the Council to query if Mr X had completed the Council’s complaint process.
15. The Council provided Mr X with a Stage 1 complaint response on 6 May 2021. The Council said it had not received any contact from Mr X since 2019 which it responded to. The Council said the building works at the site are ongoing following granting of planning permission. The Council said it does not consider the site untidy according to Section 215 of the Planning Act 1990 but, rather, a building site.
16. The Council wrote to Mr X and the Ombudsman on 27 May 2021 to advise Mr X needed to complete Stage 2 of its complaint process. The Council said it had not done this sooner because Mr X did not response to its contact of 6 May 2021.
17. On 21 June 2021, the Council provided its Stage 2 complaint response to Mr X. The Council said:
• The buildings works are subject to a current building regulations application and benefit from planning permission.
• The building work is ongoing so the building site is in a state of flux. The Council considers it an active building site and not an untidy site under Section 215 of the Planning Act 1990.
• Its records show no deviation from the approved planning permission or discordance with Building Regulations.
• It had visited the site and does not consider the structure to be dangerous under Sections 77 or 78 of the Building Act 1984.
• It will revisit the site again and check for accordance with the planning permission, building regulations and assess whether the structure is dangerous.
18. The Council completed a further site inspection on 25 June 2021 and decided nothing on the site nor the boundary wall was dangerous under sections 77 and 78 of the Building Act 1984. The Council confirmed this with the Ombudsman. The Council also confirmed it had an open Building Regulations file but had noted no current contraventions of building regulations. The Council was due to complete a further site visit to check the site for compliance with Section 215 of the Planning Act 1990.
19. The Council completed a further site visit and determined the building works on the site were progressing in line with the planning permission. Since the works were continuing and the site was a building site the Council did not consider it untidy under Section 215 of the Planning Act 1990. The Council confirmed this with the Ombudsman on 3 August 2021.
20. In February 2022, Mr X contacted the Ombudsman to follow up on his complaint. The Ombudsman contacted the Council for an update.
21. In response to the Ombudsman’s contact the Council attended the site to reinspect the damaged wall on 8 March 2022 and decided it was not dangerous. The Council also confirmed the site remained unfinished so the Council could not complete the relevant Building Regulations final checks. The Council decided that it would not be expedient to take enforcement action under Section 215 of the Planning Act 1990 because the site was incomplete and was still an ongoing building site.

Analysis

22. Mr X complained the Council failed to carry out satisfactory checks and controls on an individual completing building works to the rear of his property.
23. Primary responsibility for building work rests with those who commission it and those who do the work. It is for the person commissioning work to ensure it takes place in line with the Rules. And, if s/he does have the expertise to supervise the work, s/he will need to employ a competent person to do this.
24. The Rules do not say a council must inspect building work at certain stages or in a particular way. The Rules say a builder should tell the council when work reaches certain stages and so give a council the opportunity to inspect that work. In practice, when carrying out its building control role, a council officer will visit the development site and view the work at various stages. But, the Council’s officer is not present for most of the building work and does not act as a ‘clerk of works’ or supervise those works.
25. The council will also, when asked and satisfied, after taking “all reasonable steps”, the works comply with the Rules, issue a completion certificate. A completion certificate is not a guarantee all works meet the relevant standard.
26. The Council has attended the site at various stages to complete checks of the build. The Council has decided the build is still under construction and, as such, it cannot complete the Building Regulations final checks.
27. I am satisfied the Council has completed relevant checks and it is correct to state that it cannot complete final checks until the build is complete.
28. The Council also has an open enforcement investigation which it is keeping under review about the tidiness of the site. The Council decided it would not be expedient to take enforcement action because of the ongoing build.
29. Investigation by the Ombudsman would not result in us asking the Council to complete any further works or take any different action from because it is already taking suitable steps to monitor the site. Investigation by the Ombudsman would not achieve a meaningful outcome for Mr X.
30. Mr X also says the new building’s wall collapsed causing damage to his garden wall.
31. The person undertaking building work is primarily responsible for the standard of work including any impact on neighbouring properties. If Mr X considers his neighbour has damaged his property this is a civil matter which he can pursue by making an insurance claim or taking action through the courts if needed. There is no role for the Council in this.
32. The Council has completed site visits to check whether the wall is dangerous according to its duty under the Building Act 1984. On all site visits the Council decided the wall was not dangerous. Should Mr X disagree with this he would need to seek independent professional advice.
33. If Mr X considers the damage was caused by the Council's negligence it would be reasonable to expect him to go to court. The test for negligence is one for a court of law, not the Ombudsman.
34. The Council has completed its duty under the Building Act 1984 and damage to the wall is a civil matter between Mr X and his neighbour. As such, there is no achievable worthwhile outcome for Mr X through further investigation by the Ombudsman.

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Final decision

35. I have discontinued my investigation because further investigation of this matter would not achieve a meaningful outcome for Mr X and Mr X can take legal action against the developer or builder.

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Investigator's decision on behalf of the Ombudsman