Summary: Mrs C complained about the way the Council’s building control service handled building notice applications and said she suffered unnecessary upset and inconvenience and may have difficulties selling her property. We found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the way the Council’s building control service handled building notice applications including its dealings with her former builder and its failure to communicate with her directly. Mrs C also complains the Council has decided the work includes a change of use based on incomplete and faulty information.
2. Mrs C says because of the Council’s fault she has suffered unnecessary upset and inconvenience and may suffer difficulties should she wish to sell in the future.

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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 read the papers provided by Mrs C and discussed the complaint with her. I have also considered the Council’s response to my enquiries. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

7. 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.
8. Building Regulations approval can usually be obtained in one of three ways:

• Full plans application. This option provides the most thorough checks. The building owner or their agent submits plans for approval. Building work is checked on site by an Inspector for compliance with the Regulations (not compliance with the approved plans). Decisions are made within 5 weeks, or 2 months with the applicant’s consent. The Council will issue a completion certificate within 8 weeks which states the work is compliant with the Regulations. If the work is not compliant, the Council will issue advice on how it can be made so.
• Building notice application. This option is used for smaller works, like house extensions. Notice of commencement of building work is given at least 2 days before the work begins. The various stages of the work are then inspected and approved but no plans are checked. There is no formal approval by the Council at the end of the process, as there is with full plans applications.
• Regularisation application. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service. Compliance with Regulations can be certified after the work is done, but only by a Council Building Control service.

9. Primary responsibility for building work and compliance with the Regulations rests with building owners and builders.  If builders fail to comply with the Regulations, the Council can prosecute them. The Council can also insist the building owner pays for the costs of making the building safe.
10. 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’. Individuals who want this level of supervision of their builder can employ their own site manager.
11. 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.
12. The Building Regulations (Regulation 5g) provide there is a ‘material change of use’ when a building containing at least one dwelling contains a greater or lesser number of dwellings than previously.
13. The Devon Building Control Partnership (DBCP) provides the Building Control service for the administrative areas of South Hams, West Devon and Teignbridge councils. DBCP is hosted by Teignbridge District Council.

Key actions

14. Mrs C has submitted four building notice applications to the Council. These are not subject to a plan approval process as set out above. These were submitted as follows:

• September 2021 for ‘removal of internal wall and installation of support’
• May 2022 for ‘replacing French doors with substandard and rotting wood with new insulated double glazed replacements’
• October 2022 for ‘replacement of staircase’
• October 2022 for a ‘replacement floor’.

15. The Council visited the property on 8 April 2022 to inspect the works relating to the first application above and noted the new beam was installed and appeared satisfactory although it had not received the required calculations. It was further noted there needed to be a follow up visit to inspect the proposed insulation for this work.
16. The Council visited the property again on 11 May to follow up the insulation point above. At this visit it was noted the work at the property was much more extensive than the removal of an internal wall and installation of support. This meant the description of the work, its estimated cost and application fee were no longer considered appropriate. The Council advised Mrs C of the situation and followed this up with an email on 12 May. The Council’s email also confirmed that most of the work being carried had a requirement to comply with Building Regulations and needed to be covered by either an alteration of the submitted application or an additional application. The Council provided an extensive list of the work requiring Building Regulation approval and provided additional advice. This included advising Mrs C that the removal of two maisonettes resulted in a material change of use and set out the relevant Regulation. The Council confirmed the work could not be completed for the £900 estimated in Mrs C’s application and it would need a more representative cost of the work so it could establish a more appropriate application fee. The Council provided details of its technical support team which could offer further advice on this point. The Council asked Mrs C to contact its support team to resolve the description of work and application fee issues. The Council asked Mrs C to pass a copy of its correspondence to her builder so they were aware of the crucial elements.
17. Mrs C responded to the Council on 13 May and noted it had addressed her incorrectly and was concerned it had wrongly recorded her surname. Mrs C confirmed she was considering the information provided and wanted to clarify one point about the need for a wash basin. Mrs C also expressed concern the discussions that had taken place with her builder’s assistants upstairs at the property were not summarised with her at the time of the visit and she would need to rely on what she had overheard.
18. The Council replied to Mrs C on 16 May and apologised for incorrectly spelling her surname and confirmed it was recorded correctly on its system. The Council confirmed the Regulations required a room with a toilet to have hand washing facilities. The Council explained it had been asking routine questions of the builders relevant to the application and it would be the normal approach to discuss matters with those completing the work rather than the owner. The Council suggested Mrs C may need to seek independent specialist advice on some of the matters it had highlighted.
19. Mrs C did not contact the technical support team to resolve the description of work and application fee issue in relation to her first application or submit an application to cover all the work including the material change of use identified by the Council. Instead, Mrs C submitted a building notice application in May 2022 for replacing French doors at the property only.
20. The Council visited the property in relation to the above application at the end of May. Mrs C contacted the Council in July to say it had overlooked serious safety issues and a faulty lock in relation to the French doors her builder had installed. Mrs C also stated one of the doors had not been properly plastered in at the Council’s visit and it had asked for insulation material to be placed in the void above the door before the plastering was completed. Mrs C explained she had sent a photograph of this insulation work with no reply about whether it was compliant. Mrs C also expressed concern about a meeting held at some point between 1 and 6 June between her builder and the Council following which her builder decided not to continue working for her.
21. Mrs C contacted the Council again in August to note she had not received a reply about what was discussed with her builder at a meeting following the Council’s visit at the end of May. Mrs C advised the Council the builder in question no longer worked for her so it should update its records accordingly. Mrs C stated the building firm she had employed did not have the same skills as those of previous builders she had used and made critical comments about her former builder regarding hygiene and health and safety. Mrs C stated she had engaged professionals to assess the building work which had confirmed it was not up to standard with specific reference to the French doors. Mrs C also confirmed her main disagreement with the Council was about its material change of use assessment.
22. The Council provided a response to Mrs C at the first stage of its complaint procedure in early August. This noted the discussion with her former builder had taken place on an unrelated site and highlighted the broader project to remove the separate letting units and convert these to additional accommodation for the main house did not have a current application and the initial building application notice did not include the full scope of the works being undertaken on site. The Council noted it was the responsibility of the applicant or their agent to ensure the persons appointed to carry out the work were competent and suitably qualified. The Council provided its reasons for its assessment the proposals constituted a material change of use for building control purposes and that this was not affected by council tax considerations. The Council confirmed the need for a general application to cover all of the works identified as unauthorised at the time of its May site visit.
23. The Council responded to Mrs C at the second stage of its complaints procedure in September. The Council noted Mrs C was taking separate advice and action in relation to her builder and their labourers’ work at her property and these were private matters between Mrs C and those parties and not a matter for the Council. The Council acknowledged the additional works requiring Building Regulations approval were not picked up at its original visit in April. The Council says it was unfortunate the works were not identified earlier but noted the purpose of this visit was to inspect the works forming part of Mrs C’s building notice application for the removal of an internal wall and installation of support only. The Council reiterated its previous comments regarding its contact with her former builder and the reasons for its assessment there was a material change of use.
24. Mrs C subsequently submitted two further building notice applications in October for a replacement staircase and replacement floor respectively. The Council has explained the initial submissions are made online and registered based on the description provided by the applicant which means there is no direct contact at this stage. The Council says it accepted the applications in good faith based on the description of work provided. However, the Council has noted these applications do not provide a representative description of the work which forms part of the broader alterations to significantly change the layout including the material change of use and cannot be considered in isolation. The Council says Mrs C should have submitted a regularisation application for the wider project including the material change of use rather than the additional individual building notice applications.

My consideration

25. The Council has provided its reasons for considering a material change of use for building control purposes has taken place. It notes the property had (before the commencement of the recent works) consisted of a large dwelling which incorporated two separate maisonette units. These maisonette units were treated as multi-story flats as they shared horizontal separation with parts of the second floor accommodation of the main house. They were separate dwellings but not separate buildings and the layout of the building had provided three dwellings forming a single building. The Council has provided details of when the maisonettes were physically formed and their separate use formalised under a regularisation application which predates Mrs C’s ownership.
26. I am satisfied the Council has provided cogent reasons for its view there is a material change of use and I have seen no evidence of fault in its decision making process which would allow me to question the decision itself. This is a decision the Council is entitled to reach.
27. I note the Council did not identify all the additional work requiring Building Regulation approval at its first visit in April. On balance, I do not consider this was fault. The purpose of this visit was to inspect, as far as possible, that the works to remove an internal wall and installation of support complied with the relevant Regulations. In any event, the additional work was identified by the Council at its follow up visit in May which was only a month later. The Council then provided comprehensive advice.
28. The Council says despite the advice provided, it remains without an application for the material change of use or for many of the different elements of the scheme. The Council has confirmed that because the different applications cannot be considered in isolation from the wider unauthorised works, it could not provide completion certificates for each whilst the wider project remains without an application for regularisation. The Council has confirmed the appropriate solution would be the withdrawal of at least the last two of the building notice applications on receipt of a suitable regularisation application to cover those works as well as the other elements which remain unauthorised. I see no evidence of fault in the Council’s approach here.
29. Turning to Mrs C’s complaint about the quality of her former builders’ work, the Council’s role is simply to satisfy itself that buildings are safe and compliant with the Regulations. It is the responsibility of the person commissioning the works to ensure the work is to the required standard. If work is sub-standard, individuals may be able to seek redress in the courts, if they can show their builder did not act with reasonable care or skill. 

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Final decision

30. I have completed my investigation as I have found no evidence of fault.

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Investigator's decision on behalf of the Ombudsman