Summary: Ms X complained about how the Council dealt with her full plans building regulations application. Ms X said the Council’s failures caused her additional costs. We ended our investigation as it was unlikely to result in a finding of fault, a recommendation of a remedy or any other meaningful outcome.

The complaint

1. Ms X complained the Council took too long to assess her building regulations application and failed to advise her its officer would be unavailable or there would be delays in providing its service.
2. Ms X said that because of this, her builder was unable to start work at the time arranged, and meanwhile, the cost of building material increased.
3. Ms X would like an apology and a full refund of the fees she paid.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• We cannot show that any fault has caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6))

5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))

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How I considered this complaint

6. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and discussed what had happened with a building control officer (BCO).
7. I gave Ms X and the Council an opportunity to comment on a draft of this decision and considered the comments I received before making a final decision.

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What I found

Building regulations law and guidance

8. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
9. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
10. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
11. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.
12. The Building Act 1984 allows a right of appeal, where a question arises about:
• whether plans of proposed work conform to building regulations; or
• whether the authority is prohibited from rejection plans.
13. Amongst other things, the building regulations document that provides guidance on structure states that building regulation applications should include:
• designs identifying hazards;
• properties of materials; and
• calculations for dynamic, concentrated, and peak loads that may occur.

What happened

14. In March 2022, the Council received Ms X’s full plans building regulations application. The next day it received the fee payment for the assessment of the application and necessary building inspections. A few days later, the full plans were deposited with the Council.
15. The plans were checked a few weeks later and the Council asked Ms X to provide more information by the second week in May. Ms X said she asked the Council for an extension to provide the information, but got no response, so she rang and spoke to a BCO. Ms X said the BCO told her not to worry about the May deadline, and this led her to believe she would get an extension. However, after the deadline expired, the Council wrote to her rejecting her application, as it lacked sufficient information.
16. Ms X was unhappy the Council had rejected her plans without giving her more time. The Council explained that it had not been able to deal with her queries or process it more quickly, because its BCO had been on leave and not working full time during this period. It said that if Ms X would prefer to use an independent inspector, it would refund the part of the fee she had paid that was for the inspection part of the process, if work had not commenced. However, it said it could not refund the fee relating to assessment of plans, as it had already carried out this work.
17. I read the Council’s response and spoke to Ms X. I considered investigating whether the Council’s actions amounted to a service failure, and if so, whether we should ask the Council to do more than it had already offered Ms X.
18. I spoke to a BCO who was not involved with this case, who explained how the process worked. The BCO said even if there had been some delay in processing or another service failure, this did not cause Ms X any harm. This was because even if a building control authority rejected an application, the developer can carry on with the work and submit more information later, up to three years after the application was first received. Ms X can do this without paying a further fee.
19. Once the authority is satisfied the plans are compliant, it can accept them, and once inspections are carried out and the authority is satisfied, it can issue a completion certificate.

My findings

20. We are not a building control appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate further, and my reasons are as follows:
• There is an appeal right for questions relating to rejection of plans. Because of this, it is not for us to comment on whether the Council was wrong or right in its judgement that the plans contained insufficient information.
• The Council has explained why there were difficulties in processing the information. Even if we were to find fault in how it dealt with Ms X, we cannot show she was caused a significant injustice by what has happened. This is because Ms X can still submit more details which might allow the Council to approve her plans.
• Ms X might have preferred to have the plans approved before her builder began work, but the Council assured me there would be nothing to stop her continuing the work while waiting for the plans to be approved.
• Ms X said her costs have increased because of what has happened. Before we recommend a remedy, we need evidence of fault causing an injustice that we can remedy. We are not a court and cannot speculate on questions relating to consequential losses. In any event, building regulation control is structured in a way that places obligations to comply with the regulations on developers and landowners, rather than BCOs or independent inspectors.

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Final decision

25. I ended my investigation as it was unlikely to result in a finding of fault, a recommendation for a remedy or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman