The Ombudsman's final decision:
Summary: Mr C complained the Council failed to enforce building regulations after his neighbour moved an oil tank next to his property. We find the Council was at fault for its communication with Mr C. The Council has agreed to our recommendations to address Mr C’s injustice.
- Mr C complained the Council failed to enforce building regulations after his neighbour moved an oil tank next to his property. He is concerned about the risk of a fire because of the proximity of the oil tank to his property.
The Ombudsman’s role and powers
- 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)
- 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)
- 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 information Mr C submitted with this complaint. I made written enquiries of the Council and considered information it sent in response.
- Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Most building work, whether new, alterations, or extensions requires building regulation approval. The Building Act 1984 is 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.
- Councils have a general duty to enforce buildings regulations in their area and will do so by informal means where possible. If that does not achieve compliance, under the Building Act 1984 councils may:
- Prosecute the person carrying out the work in the Magistrates' Court where an unlimited fine may be imposed. Prosecution is possible up to two years after the completion of the offending work but must be brought within six months of the date the council had enough evidence to justify bringing a prosecution.
- Serve an enforcement notice on the building owner under section 36 of the Act, requiring alteration or removal of work which contravenes the regulations. If the owner does not comply with the notice the council has the power to undertake the work itself and recover the costs of doing so from the owner. A section 36 enforcement notice cannot be served later than 12 months from the date of completion of the building work.
- Enforcement action is discretionary and so it is up to the judgement of council building control officers whether and how to enforce the regulations. The government advises councils that enforcement powers should only be used if a breach causes, or is likely to cause, significant harm or risk of harm.
- Mr C contacted the Council in February 2020 and reported that his neighbour (Mr D) had relocated an oil tank against his property.
- The Council contacted Mr D a week later and asked for evidence a registered engineer had installed the oil tank.
- The Council’s planning enforcement officer visited the site in March and took photographs. The planning enforcement officer’s view was the oil tank was in no worse position than it was previously.
- The Council’s building control officer visited the site in April. Mr D agreed to provide evidence a registered engineer had installed the oil tank.
- Mr D provided the Council with a letter from the registered engineer a couple of weeks later. The engineer said he had altered the existing oil line. Mr D also said the base had been rebuilt but the oil tank was not new and remained in the same place before he bought his house.
- The Council updated Mr C and said the work was not a new installation and a registered engineer had completed the work. Therefore, it would take no further action. Mr C replied and said his neighbour had moved the oil tank. The Council asked him for photographic evidence.
- Mr C complained to the Council on 29 April about its failure to resolve matters. He provided it with photographic evidence of the oil tank on 5 May.
- The Council issued its response to Mr C’s complaint on 13 May. It said consent was not required under building regulations because a registered engineer had installed the oil tank.
- Mr C contacted the organisation (Organisation A) that registers individuals and businesses working with oil-fired equipment. It said it had no record of the work on its system. Mr C referred his complaint to stage two of the Council’s complaints procedure and made it aware of Organisation A’s response.
- The Council issued its stage two response on 28 July. It said although a registered engineer had completed the work, he had failed to register the work with Organisation A. It agreed to contact Mr D and ask for evidence he had registered the work with Organisation A.
- Mr C contacted the Council on 2 October and asked if it had contacted Mr D.
- The Council wrote to Mr D on 8 October. It updated Mr C on 13 October.
- Mr C emailed the Council on 21 January 2021 and asked for an update.
- The Council’s internal emails suggest an officer spoke to Mr D and told him the work was unauthorised. However, it would not take any further action because a registered engineer had completed the work.
- The Council wrote to Mr D in August and asked if he had registered the relocation of the oil tank with Organisation A. Mr D responded and said the oil tank had not moved, but the engineer had rotated the base 90 degrees. He said he was willing to meet to discuss matters further.
- The Council followed the process I would expect when Mr C told it about the relocation of the oil tank. It contacted Mr D and visited the site twice. The Council’s view is the work is not in breach of building regulations. Its professional judgement is that although the oil tank has moved, it is not in a worse position than it was previously.
- It also says the oil tank is facing walls that have no doors or windows in them, the work has been completed by a registered engineer and the work meets the minimum distances to comply with fire safety regulations. I appreciate Mr C strongly disagrees with the Council’s view, but there is no fault in how it reached its decision.
- The main issue is the engineer failed to register the work with Organisation A. The Council has asked Mr D for evidence he has done so. It has registered the work as unauthorised until this is provided, and it may affect Mr D’s ability to sell the property in the future.
- While I have no fault in the Council’s decision-making process, I do find fault with its communication with Mr C. It told him it would write to Mr D when it responded to his complaint on 28 July. It only did so after Mr C chased it for a response on 2 October. There is also no evidence the Council responded to Mr C’s email of 21 January and updated him. This means Mr C has been left with uncertainty as to what is happening. The Council should apologise for this. I also note Mr D offered to meet with the Council to discuss matters further. The Council should also write to Mr C and provide him with an update on whether it intends takes to take any further action.
- To address the injustice caused by fault, by 4 January 2022 the Council has agreed to:
- Apologise to Mr C.
- Write to Mr C with an update on the current situation and explain whether it intends to take any further action.
- I have found fault by the Council, which caused Mr C an injustice. The Council has accepted my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman