Summary: Mr B says the Council wrongly required him to implement items of construction that were not required under the building regulations and delayed recognising that, allowed its building control surveyor to treat him inappropriately, refused to change the building control surveyor and now refuses to visit his site. There is no fault in how the Council dealt with building control issues, in its decision not to change the building control surveyor or in its request for Mr B provide photographs instead of arranging site visits. The building control surveyor dealt with Mr B inappropriately on one occasion but the Council introduced suitable arrangements to manage contact but failed to explain that properly to Mr B. An apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• unreasonably asked him to implement items of construction that were not required under the building regulations and delayed recognising that until after he complained to the head of building control;
• allowed its building control surveyor to treat him inappropriately;
• refused to change the building control surveyor; and
• refused to visit the site and instead required him to provide photographs which the Council had previously said it could not accept.
2. Mr B says this has caused him delays and expense.

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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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

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. 'Approved documents' give examples of how the regulations can be met, but these examples do not have to be followed.
9. There are two options for getting building regulations approval:
• from a Council building control inspector; or
• from a private sector approved inspector.
10. The Building Regulations 2010 provides for someone completing building works to submit a building notice in accordance with regulation 13 rather than submitting full plans. It says where a building notice has been given a person carrying out the work shall give the local authority, within such time as they specify, such plans as are, in the particular case, necessary for the discharge of their functions in relation to building regulations and are specified by them in writing.
11. The Council’s building notice application process says following receipt of an application and notice of commencement being received a surveyor will review the plan and visit the site for a commencement inspection. At that site visit the surveyor will explain the site inspection framework and method of requesting inspection and any outstanding conditions that should be discharged. It says further visits are made at the request of the client/agent/contractor or at the volition of the surveyor. It says at each inspection the surveyor will check work on site is compliant with the building regulations and associated legislation. It says where work is not compliant the contractor/client/agent is made aware of compliance issues and remedial work is agreed and recorded.

What happened

12. Mr B is a builder and was intending to carry out some building work at his daughter’s property. Mr B put in a building notice on behalf of his daughter and paid the fee. Mr B initially intended to begin work in 2021 but that was delayed due to the need to apply for planning permission. Mr B contacted the Council again in March 2022 to tell it he was now on site and asked for a building control visit. The Council arranged the visit for the following day and Mr B asked whether he could provide photographs if the surveyor did not visit before his concrete was delivered. The Council said it could not accept photographs of the foundations.
13. That building control visit took place on 24 March 2022. By that point the Council says Mr B had demolished part of the existing building and begun work on the foundations although Mr B says he only removed some walls. The building control surveyor raised concerns about the design of the foundations and noted Mr B had not provided architectural plans or engineering details which were required due to the increased scope of the work. That also resulted in Mr B having to submit a revised building notice to include the additional works.
14. The building control surveyor carried out a further site visit on 29 March. During that visit the building control surveyor raised concerns about the structure/design of the building and noted he did not have any structural details. The building control surveyor asked Mr B to provide some further details which included details relating to the load bearing capacity of the walls and how Mr B intended to buttress them to prevent any racking or lateral movement. The building control surveyor also noted there was an issue of being able to tank the walls to prevent moisture ingress that needed consideration.
15. Mr B asked the Council to reduce the scope of the building notice to cover the foundations only. The Council told Mr B it could not do that as it did not have a confirmed development plan for the building above ground. The Council set out the legislative requirements and breach of demolishing building without prior consent, although Mr B disputes the term ‘demolition’. Mr B spoke to the head of building control who confirmed the information.
16. In April 2022 Mr B provided the Council with technical details for the wall construction and requested approval of the design. The building control surveyor asked for additional information which Mr B provided. Mr B made clear he had not reduced the ground level at the property and instead had levelled the area. Following that the building control surveyor visited the site and approved the details for the wall construction in principle.
17. Later in April Mr B chased the Council for a decision on attic trusses. The building control surveyor agreed the design in principle but reminded Mr B he had not provided a structural report/package for the existing house and said trial holes may be needed to substantiate the existing house foundations. The Council asked Mr B to provide the additional information previously requested. Mr B raised concerns about that request and asked for another inspector. The head of building control responded to Mr B and explained the information requested by the building control surveyor was appropriate.
18. Mr B again asked for a different building control surveyor in May. The head of building control confirmed what the building control surveyor was asking for and said that was the correct approach. The head of building control confirmed the building control surveyor was the area surveyor and would continue to carry out site visits.
19. In May Mr B provided structural calculations and details for his project. The Council subsequently confirmed the structural calculations were acceptable.
20. Following a site visit on 5 July the building control surveyor raised concerns about some aspects of the build and asked for further information.
21. Mr B spoke to the building control surveyor on 20 July. That is described as a heated exchange where the building control surveyor swore at Mr B. The building control surveyor subsequently apologised to Mr B and explained he needed to provide some insulation to the roof. Mr B asked the Council to change the allocated building control surveyor. The head of building control told Mr B she had spoken to the building control surveyor and he would remain as the allocated officer dealing with Mr B’s case.
22. Mr B subsequently exchanged emails with the building control surveyor and the head of building control about the insulation required for the roof. That included Mr B providing some further proposals for insulation which the Council did not consider acceptable.
23. The building control surveyor visited the site again on 28 July with the planning enforcement officer. Mr B was not present at that visit. The building control surveyor identified some issues with the building including damp proofing, the roof make up being different to the details submitted and lateral restraint straps. The building control surveyor notified Mr B about those issues.
24. The Council then exchanged emails with Mr B about the requirement for lateral restraints. The Council explained it could not agree the proposals put forward by Mr B without further information from the structural engineer. Mr B provided further information from the designer to confirm no lateral strapping would be required. When providing this to the Council Mr B pointed out he intended the gable end to be a stud wall rather than a masonry wall as the building control surveyor had stated and noted he had not yet provided details for approval of that. In response the head of building control pointed out to Mr B if he did not provide information to the Council upfront it could lead to misperception of the design of the development. The Council subsequently advised strapping was not required as Mr B had confirmed the construction of the gable wall.
25. Later in August Mr B reminded the Council he had submitted a building notice and had no obligation to provide any details up front and had done so out of courtesy. The head of building control pointed out Mr B was asking the Council to approve the design and that meant the Council needed all details to be provided
26. The building control surveyor contacted Mr B later in August to explain the outstanding information required. The building control surveyor asked Mr B to provide photographs of the installed timber structure at first fix stage and before enclosing the building. Mr B raised concerns about that request as he had understood the Council could not rely on photographs. The head of building control explained the Council was not required to visit the site throughout the build and could ask for photographs.
27. The Council responded to Mr B’s complaint at the end of August 2022. In that complaint response the Council noted if Mr B had provided existing and proposed plans as requested in 2021 it would have had the information it needed regarding retaining walls and buttressing. The Council reminded Mr B Regulation 13 of the Building Regulations 2010 required him to provide plans necessary for the Council to be satisfied the work complied with the regulations and explained the Council was satisfied the information it had asked him for was appropriate and within the statutory requirements. The Council raised concerns Mr B had not provided an overall plan or specification for the work and had instead provided information on a piecemeal basis with many pieces missing whilst expecting the Council to approve the design. The Council explained the building control surveyor had apologised for the swearing incident and the head of building control had overseen the situation following that and therefore the Council saw no reason to allocate the project to another surveyor. I understand this is the last contact between Mr B and the Council.

Analysis

28. Mr B says the Council’s building control surveyor unreasonably asked him to carry out various items of construction that were not required under the building regulations. Mr B says in doing so the building control surveyor failed to recognise there were alternatives to comply with the building regulations and instead kept requiring him to undertake specific work which was not required. Mr B says on each occasion for the points he has raised with the Ombudsman the building control surveyor’s requirements were overridden by the head of building control who advised him the measures requested were not required.
29. I have considered the documentary evidence which includes emails between Mr B and the building control surveyor and between Mr B and the head of building control. I have considered each of the points Mr B makes about work he was asked to do which he says he was later advised was not required. I have found no evidence of fault in the way the Council communicated with Mr B about the works being undertaken at the property he was working on. None of the evidence shows the Council trying to impose on Mr B a specific form of action and none of the evidence shows the building control surveyor asking for items of construction which were later overruled by the head of building control.
30. Rather, the documentary evidence I have seen satisfies me the reason the building control surveyor was asking for some items which subsequently were not required was because by the time of the building control surveyor’s first visit to the site Mr B had already begun work and taken down some walls from the existing property. I am satisfied this meant the building control surveyor was unable to establish what had been taken down at the property. I am satisfied this meant the building control surveyor was not satisfied the information Mr B had submitted was sufficient to enable the Council to properly understand the situation on site before the build. That covers Mr B’s concerns about retaining walls and whether structural calculations were required, whether buttressing walls had been removed, whether site levels had been reduced and whether trial pits were necessary. For those items I am satisfied the Council’s position altered when Mr B provided evidence such as photographs of the site before works began or additional information. In other words, information the Council did not have when it asked for particular action or more information. In those circumstances I cannot criticise the Council for asking for additional information from Mr B or for recommending action based on the Council’s understanding of what was planned on the site.
31. I am also satisfied the Council made recommendations or outlined what might be required, rather than imposing a specific action. I consider that is a normal part of the process when the Council does not have detailed plans and is not fault. While I appreciate Mr B believes the building notice process should require less information to be provided upfront that does not mean the Council cannot ask for additional information, as it did in this case. That is in accordance with the building notice procedure under the Building Regulations 2010, which I refer to in paragraph 10. I therefore have no grounds to criticise the Council.
32. There were other cases, such as the issue of the roof insulation and roof trusses, where the evidence satisfies me Mr B came up with an alternative proposals which the Council was satisfied would meet the requirements of the building regulations. While Mr B says the Council was asking for a specific method of installation and his own proposal was a satisfactory alternative that is not supported by the documentary evidence. Instead, the documentary evidence shows the Council explained to Mr B on several occasions why his proposed method was not acceptable and only when Mr B suggested an alternative method was the Council satisfied. Again, I consider that to be part of the normal process and it is not fault for the Council to suggest action that will meet the requirements of the building regulations. I have seen no evidence though to suggest the Council then failed to accept alternative ways to meet the requirements of the building regulations when the Council was satisfied they were suitable when Mr B put those forward. I therefore have no grounds to criticise the Council.
33. Mr B says the Council wrongly referred to the approved documents as the building regulations. I have found no evidence to support that view. Rather, in correspondence with Mr B the Council made clear the approved documents were for guidance only.
34. Mr B is also concerned the building control surveyor commented on planning matters which were not within his remit. Having considered the documentary evidence I am satisfied this relates to whether the work being carried out by Mr B was in accordance with the approved planning permission. I appreciate that from Mr B’s point of view he was dealing with building control. However, I would expect Council departments to work together and it is not fault for the Council to raise with Mr B any concerns it had about him building a development for which he might not have planning permission. That is not fault.
35. The Council accepts its building control surveyor acted unprofessionally when speaking to Mr B on 20 July 2022 which involved the officer swearing at Mr B. Mr B says the Council should have changed the building control surveyor at that point and he is concerned the Council repeatedly refused to do that. In contrast the Council says the building control surveyor had apologised and due to the way in which the work was being carried out on site the Council considered it preferable to maintain the same building control surveyor with communication being supervised by the head of building control.
36. For building control matters in this case Mr B had employed the Council to carry out the building control work. Mr B therefore had a reasonable expectation he would receive a professional service. As I have set out in this statement, although Mr B was regularly requesting the Council change the building control surveyor before the incident in July 2022 I have found no evidence of the building control surveyor acting inappropriately until 20 July 2022. At that point I would have expected the Council to consider whether it was appropriate for the building control surveyor to continue to work on Mr B’s project given Mr B was paying for the service. I appreciate from the Council’s point of view there were issues with this particular build but I also appreciate from Mr B’s point of view it is likely the trust and confidence in the allocated building control surveyor had broken down as a result of what happened on 20 July 2022.
37. The Council suggested it would create a precedent if it were to change the building control surveyor at Mr B’s request and this would then impact on the impartiality. I do not disagree with the Council in relation to the period leading up to the incident on 20 July 2022. Mr B had requested a change of building control surveyor before that as he was not happy with the one allocated and I do not criticise the Council for refusing to change the building control surveyor at that point. However, it was different following 20 July 2022 as there had been a clear incident of inappropriate behaviour which was recognised by the officer. I note though the Council took action by arranging for the head of building control to oversee communications between Mr B and the building control surveyor. I am also satisfied the Council arranged for the building control surveyor to substantiate any further works by photographs rather than site visits and for the building control surveyor to be accompanied on the completion visit by another building control surveyor. I am also satisfied although a further site visit took place on 28 July that was an accompanied visit as a planning enforcement officer was also present, although Mr B was not there on that day. Given those arrangements I could not say the Council had failed to consider alternative arrangements for this site following the incident on 20 July 2022. In those circumstances I do not criticise the Council for deciding not to change the surveyor. However, I am concerned the Council did not explain the measures it had put into place to Mr B. Instead, the Council only told Mr B it would not change the building control surveyor. Failure to explain the measures put into place for Mr B to protect both him and the officer is fault and is likely to have led Mr B to believe the Council did not take seriously the way in which the officer spoke to him on 20 July 2022. As remedy for that I recommended the Council apologise to Mr B. The Council has agreed to that recommendation.
38. Mr B says the Council refuses to visit the site now and is requiring him to provide photographs instead. Mr B is concerned about that because he says the Council previously said it could not accept photographs. I have seen nothing in the documentary records to suggest the Council has refused to carry out site visits to the property. In fact, the Council visited the site as late as 28 July 2022. In any event, I do not consider it fault for the Council to ask Mr B to provide photographic evidence of works for the Council to consider. That is not unusual, particularly following COVID-19. It is also clear this was put in place partly due to the breakdown in the relationship between Mr B and the building control surveyor following the telephone call on 20 July 2022.
39. As I said earlier though, there is no evidence the Council explained to Mr B the measures it had put in place following that telephone call, which included asking for photographic evidence to substantiate work completed on site rather than relying on site visits. If the Council had explained that point to Mr B he may have understood why the arrangement had changed. I have not, however, seen any evidence to suggest Mr B was previously told photographs would never be accepted. I appreciate Mr B had been told photographs would not be accepted for the foundations at the start of the project but that does not amount to the Council telling him it could never accept photographic evidence. I therefore have no grounds to criticise the Council, other than for the way in which it communicated with Mr B following the changes it introduced as a result of the telephone call on 20 July 2022.

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Agreed action

40. Within one month of my decision the Council will apologise to Mr B for failing to explain the measures it had put in place to manage contact between him and the building control surveyor following the telephone call of 20 July 2022.

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Final decision

41. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. The action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman