The Ombudsman's final decision:
Summary: Mrs B complains the Council failed to take effective action in response to her reports about alleged breaches of Building Regulations and planning control at a neighbouring development. Mrs B says additional capacity from the development has caused damage to an existing septic tank system. We have decided to end our investigation as the events happened too long ago and are civil matters between neighbours.
- The complainant, whom I shall refer to as Mrs B, complains on behalf of her parents that the Council has failed to properly investigate and take effective action in response to her reports about alleged breaches of the Building Regulations and planning control by a developer building on land next to her parent’s property. Mrs B says her main concern that the Council has not followed its own policies and procedures or relevant legislation and guidance in allowing a non-mains connection to her parents’ septic tank system.
- Mrs B says because of the Council’s fault, additional capacity from the development has caused damage to the existing septic tank system and she has spent unnecessary time and trouble in trying to resolve the matter.
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 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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- I read the papers provided by Mrs B and discussed the complaint with her. I have explained my draft decision to Mrs B and the Council and provided an opportunity for comment.
What I found
- The Council gave planning permission in 2011 for an extension to a property and a detached garage. The planning permission included conditions that prevented the garage being used for business activity and that is could not be converted to or used as living accommodation without prior consent by the Council. The application stated that both foul sewage and surface water would be disposed of by mains sewer and it was proposed to connect to the existing drainage system.
- Mrs B’s parents live near the development and use a septic tank drainage system.
- Mrs B says the development is not built in accordance with the approved plans and refers to the removal of a hedge which was replaced with a boundary wall in 2011 and the garage being oversize and used as habitable accommodation. Mrs B says she was aware the neighbours had moved into an apartment above the garage in 2017 but was told this was a temporary measure during works to the main house. The use continued for over three years.
- Mrs B says that during discussions with the neighbour in 2018/19 about the possible sale and development of her parent’s remaining land the neighbour advised this could not take place as they had a right of connection to the existing septic tank system. Mrs B says this prompted suspicions about whether the neighbour had connected to mains drainage in line with the 2011 planning application.
- Mrs B says she subsequently sought information from the neighbour and Council during 2020 about the drainage as the septic tank system was failing and getting worse. Mrs B received a solicitor’s letter from her neighbour in July 2020 which confirmed they had connected to the septic tank.
- Mrs B made a complaint to the Council in February 2021 and complained to the Ombudsman in July 2021.
- The Council allowed a non-material amendment to the 2011 permission in July 2021 to allow the garage to be used for home-working.
- Mrs B says the Council issued a completion certificate for the drainage works in October 2021 and considers it should not have done so.
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- I do not consider we should investigate the Council’s consideration of the original planning application in 2011. The passage of time means there is not a realistic prospect of reaching a sound, fair and meaningful decision and I am satisfied Mrs B could have complained to us sooner about this matter.
- I also do not consider we should investigate Mrs B’s concerns about the boundary treatment or garage not being built or used in accordance with the approved plans. Mrs B says the build was taking place behind a large wall and gates, there was delay in receiving information from the Council and there is a conflict of interest as her neighbour is good friends with Council officers. However, I do not consider these factors affected Mrs B’s ability to make a complaint sooner as she has confirmed the boundary treatment was changed in 2011 and she was aware of the scale and use of the garage from 2017. The trigger for Mrs B’s complaint appears to have been when she considered her parents’ septic tank system was being affected by the works during 2020.
- It may be helpful to provide some information about the Ombudsman’s approach to building control complaints. We would not normally investigate a complaint about damage to property caused by a neighbour’s building work. This is because we cannot recommend the remedy the complainant wants of the Council paying for the costs of repairs or achieve a meaningful outcome for them.
- Councils should not be seen as a ‘guarantor of last resort’ when things go wrong and are not directly liable for poor or unlawful building work as:
- primary responsibility for building work and compliance with building regulations rests with building owners and builders; and
- 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’. 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.
- Mrs B suggests her parents’ septic tank system is failing due to the actions of their neighbour. This is a matter for private legal action by Mrs B’s parents against the neighbour. It may be possible to obtain independent legal advice about this under their home insurance policy.
- I have ended my investigation as:
- Some of the matters complained of are caught by the restriction outlined at paragraph 5 above and I do not consider Mrs B has provided good reason for me to accept a late complaint now;
- the issues relating to the connection to the existing septic tank system are a civil matter between Mrs B’s parents and their neighbour;
- we cannot achieve a meaningful outcome for Mrs B; and
- Mrs B has not made a complaint to the Council about its consideration of the July 2021 non-material amendment or the issuing of a building control completion certificate in October 2021 and would need to do so in the first instance to allow the Council an opportunity to investigate these matters under its own complaints procedure.
Investigator's decision on behalf of the Ombudsman