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Canterbury City Council (21 012 062)

Category : Planning > Building control

Decision : Upheld

Decision date : 22 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complains the Council completed a building control enforcement investigation into a neighbouring property without considering the evidence he had on the building works. There was fault by the Council because it did not consider information from Mr X. I recommend the Council reopens its enforcement investigation to take account of the information Mr X has.

The complaint

  1. I refer to the complainant here as Mr X. Mr X says the Council completed a building control enforcement investigation into a neighbouring property without considering the evidence he had on the building works.
  2. Mr X wants to the Council to visit the site and ensure his neighbour makes changes to the extension to bring it up to an acceptable standard.

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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 considered the complaint and background information provided by Mr X and the Council.

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What I found

  1. In 2021, Mr X complained about the construction of an extension and outbuilding at a neighbouring property to the Council’s planning enforcement and building control teams. This complaint concerns the building control team’s investigation.
  2. Building control officers visited the neighbouring property. They said the extension and outbuilding should have been controlled under the building regulations and were unauthorised. However, they considered the building works were historical and had been complete/occupied for at least two years.
  3. Officers emphasised the time period because section 35A of the Building Act 1984 imposes a time limit on a local authority’s ability to seek a prosecution of anyone who contravenes the building regulations. The requirement is that the local authority seeks a prosecution within two years of the date when the offence is committed.
  4. Officers told Mr X the building work is historical and beyond the time limit for prosecution.
  5. Mr X disputed the conclusion made by building control officers. He said he had CCTV footage of a wood burner being fitted at the neighbouring property in the spring of 2021. He provided photographs. He said various works required building regulations approval before any extension could be considered complete but none of them had been carried out.
  6. Mr X asked the Council to explain when the 2 year time limit started if officers suggested the extension was only complete. He said that he and contractors working on the extension to his own property had witnessed construction work at the neighbouring property in 2021. He asked the Council for proof the building had been complete for more than two years.
  7. The Council’s final stage complaint response stated the building control team had explained there is no further action the Council will take given the circumstances and time the extension has been in place. As Mr X had enquired into the planning status of the extension and the outbuilding, the Council said planning officers would investigate and advise him of the next steps.

Finding

  1. Mr X disputed the Council’s conclusion that the extension and outbuilding at the neighbouring property were outside the time limit for any prosecution. He provided evidence in the way of CCTV footage or photographs suggesting construction work was underway at that property in 2021. The Council’s response did not consider the evidence or at least explain its view on the evidence. That was fault.
  2. Mr X also alleged that he and others had witnessed building works in 2021. The Council also failed to respond to this point.
  3. The Council should have evaluated the evidence to see whether the evidence changes the view taken by officers that the extension and outbuilding had been complete for two years or more.

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Recommended action

  1. Where we find fault by a local authority we must consider the injustice caused and a possible remedy for the injustice. Here, I recommend the Council reopens the building control investigation and evaluate any evidence from Mr X on the time when the extension and outbuilding were constructed.

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Draft decision

  1. Subject to further comments by Mr X and the Council, I intend to close this complaint provided the Council accepts the recommendation made in this statement.

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Investigator's decision on behalf of the Ombudsman

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