Summary: Mr X complained about how the Council enforced building regulations and planning control near his home. There was fault in how the Council failed to properly consider the legal powers available to it and took too long to respond to Mr X’s complaint. The Council agreed to apologise, pay Mr X a financial remedy, review is procedures and provide training to its staff.

The complaint

1. Mr X complains the Council failed to act to stop unauthorised building works in a residential property near his home. He is concerned the property is unsafe and could collapse, causing damage to his home. He wants the Council to arrange a full structural inspection of the property and ensure the owner puts right any defective works.
2. Mr X also complains the Council has not properly considered whether a caravan in the garden of the property breaches planning rules and that it did not complete the actions it agreed in its final response to his complaint.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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

6. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Building control

8. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings.
9. Councils may take action to protect the public if it considers a building or structure in its area to be unsafe. Councils may order works to improve defective, dangerous or dilapidated buildings or structures. If the building owner does not follow the order, the Council may carry out the works and charge for its costs.
10. Councils have the powers to enter premises to check whether building work complies with the regulations or are dangerous. If a building owner refuses to allow entry, councils can apply to the magistrate’s court for authority to enter without the owner’s permission.
11. If a council wishes to prosecute a building owner for breaches of building regulations, it must apply to the magistrate’s court within:
• two years of the date the breach was committed; and
• six months from the date the council had enough evidence to justify starting proceedings.
12. Councils can also apply to the magistrate’s court for an order requiring the owner of a building it considers to be dangerous to make repairs necessary to prevent the danger.

Planning permission and permitted development

13. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
14. Generally, ‘development’ does not include maintenance, improvement or changes of the interior of buildings (even structural changes) or using a caravan within a home’s garden as an extension of the home (rather than as a separate home).

Council’s complaints procedure

15. The Council’s complaints procedure has two stages:
• Stage 1 – an acknowledgement of a complaint within five working days and a written response within 20 working days. In complex cases, where the Council cannot respond within this time, the Council should write to the complainant to tell them of any delay.
• Stage 2 – a review by the Council’s Chief Internal Auditor. This stage of the Council’s process has no stated timescale.

What happened

16. The owner of a property near to Mr X’s home started building works in March 2021. The works were to the internal structure of the property.
17. Mr X became concerned with the extent of the works in late March 2021 and raised this with a local councillor who passed the information onto the Council’s building control team.
18. The Council tried to visit the property a few days later but could not gain access to inspect the ongoing works. It then made several attempts to contact the building owner and gained access to the property in early May 2021.
19. Following this visit, the Council told the building owner that they needed building regulation approval for the works and so needed to submit an application. The Council advised the owner to stop the works until they had completed an application and the Council had considered it. However, the owner continued with the building works.
20. Over the following months, the Council made several attempts to contact the owner and get them to submit the application. The Council continued to warn the owner to suspend the building works until an application had been submitted. However, the works continued.
21. Throughout this time, Mr X continued to raise his concerns about the works with the Council. In particular, Mr X was concerned the works affected the structure of the property and there was a risk of it collapsing.
22. Mr X complained to the Council in early November 2021 about what he viewed as a lack of action both with the building works and about use of a caravan in the garden of the property.
23. The Council responded to Mr X’s complaint in late December 2021. Mr X was not happy with the Council’s response, so he asked it to consider his complaint at stage 2 of its complaints procedure.
24. The Council assigned the complaint to an investigating officer in late January 2022, who produced their report in late March 2022. The investigating officer found the Council:
• failed to keep Mr X informed about the action it was taking to address his concerns about the building works;
• failed to properly explain to Mr X why the Council considered the building works did not affect the safety of the building itself or other neighbouring buildings; and
• failed to properly consider whether it could take legal action against the building owner for breaches of the building regulations within the required timescales.
25. They also found there was no evidence the caravan in the garden of the property was being used in a way which required planning permission.
26. The investigating officer recommended the Council:
• keep in regular contact with similar complainants in future;
• apologise to Mr X and offer him £150 to recognise the avoidable worry and distress the delays and poor communication had caused him; and
• write to Mr X addressing his desired outcomes from the complaint, which included:
1. an official independent structural survey of the property;
2. a detailed explanation why the Council had taken so long to take action;
3. appropriate action to be taken against the owner of the building; and
4. all work at the building to stop and be made safe if required.
27. Following its investigation, the Council wrote to Mr X, apologising for the delays and addressing his desired outcomes. Mr X was not satisfied with the Council’s response, so he complained to the Ombudsman.
28. Shortly after this, in April 2022, the Council agreed access to the property with the owner. A senior building control officer inspected the works and raised several concerns with the owner, including whether some of the works adequately supported the floor above.
29. The Council arranged for a report by an external engineer who confirmed that some of the works needed either replacement or extra support. The building owner agreed to install extra support, which the Council inspected in June 2022. Based on this inspection, the Council was satisfied that owner had taken satisfactory steps to support the floor above and no further work was necessary.

My findings

Building control enforcement

30. It is not our role to decide if the property in question was safe, or what action the Council should have taken; that was the Council’s responsibility. Our role is to assess whether the Council made its decisions properly. If a council followed the right steps and considered relevant evidence, we cannot question the outcome.
31. I am satisfied there was no fault with the Council’s first response to Mr X’s concerns. It acted quickly to contact the owner and visit the property within just over a month. A building control officer inspected the property and advised the owner what the needed to do to obey building regulations.
32. However, the owner then failed to take the action the Council advised or to respond to the Council’s attempts at contact. This went on for several months during which Mr X continued to raise his concerns. Despite this, the Council continued to only try to persuade the owner to cooperate.
33. While it is not our role to decide what action the Council should have taken, I am satisfied the Council failed to properly consider its powers to either gain entry to the property or to take further action against the owner. As found in the Council’s own investigation, this meant the Council missed the opportunity to take legal action against the owner for failing to follow the regulations.
34. I cannot say whether, had the Council properly considered its powers, it would have decided to use them or whether legal action by the Council would have resolved the situation sooner. However, I am satisfied the Council’s failure to properly consider the powers it had, and poor communication, led to delays in addressing Mr X’s concerns which prolonged his anxiety and distress.
35. Since Mr X’s complaint to the Ombudsman, the Council has inspected the property, sought external advice from a structural engineer, agreed remedial works with the property owner and inspected those remedial works. The Council is satisfied, based on the evidence it has gathered including further site visits by building control officers, that any risk to the property has been removed. I am satisfied there was no fault in how the Council made this latest decision. I cannot question the professional judgement of the Council’s officers.

Planning enforcement

36. I am satisfied the Council properly considered the issue of the caravan in the garden of the property before deciding that its use did not require planning permission.
37. The Council made its decision after seeking information from the owner, and making several site visits. Since the Council properly considered the law and available evidence, I cannot question the conclusion it reached.

Complaints handling

38. The Council acknowledged Mr X’s complaint two weeks after he made it and sent its Stage 1 response around six weeks after Mr X first complained. Both these timescales exceeded those in the Council’s procedure. Although this was towards the end of the significant disruption caused by the COVID-19 pandemic, I am satisfied these delays were fault which caused further frustration to Mr X.
39. After Mr X asked for an escalation to Stage 2 of the Council’s complaints procedure, the Council then took one month to assign his complaint to an investigating officer and then a further two months before it sent Mr X its final response. Although the issues were complex and the investigation was thorough, I am satisfied the Council took too long to respond to Mr X’s complaint.
40. The Council’s complaints policy does not set any timescales for the second stage of its complaints procedure. This has the potential to lead to complaints, such as Mr X’s, taking many months to investigate and complainants not knowing how long they should wait. Our view is that all complaint stages should have realistic timescales set out and the Council’s policy fails to do this.
41. Following its final decision, the Council did apologise to Mr X for the poor communication and for delays in taking action. I am satisfied that this apology, combined with the findings of the Council’s investigation and its final complaint response, was an adequate recognition of the failures the Council accepted.
42. This letter also addressed Mr X’s desired outcomes, also as recommended by the Council’s investigation. However, the Council’s investigation did not specifically agree the outcomes Mr X asked for were suitable. The Council’s final response was not clear on this point so, while I am satisfied the Council had not agreed to do all the things Mr X wanted, it did not make this clear. This caused further avoidable frustration for Mr X.

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Agreed action

43. Within one month of my final decision the Council will:
• apologise to Mr X for the avoidable frustration and distress caused by its failure to properly consider the powers available to it and the delays in responding to his complaint; and
• pay Mr X £250 to recognise the frustration and distress it caused.
44. Within three months of my final decision the Council will:
• review how it monitors building control investigations to ensure it makes decisions at appropriate times and it fully considers the powers available to it;
• arrange training for its building control officers on the legal powers available to them and the time limits for taking legal action; and
• review its complaints policy to ensure that each stage has clear timescales associated with it. The Council should provide a copy of any revised policy to the Ombudsman.

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Final decision

45. I have completed my investigation. There was fault in how the Council failed to properly consider the legal powers available to it and took too long to respond to Mr X’s complaint. The Council agreed to apologise, pay Mr X a financial remedy, review is procedures and provide training to its staff.

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Investigator's decision on behalf of the Ombudsman