Summary: Mr X complained the Building Control Partnership, acting on behalf of the Council, gave misleading advice and instruction resulting in additional and unnecessary work being completed. We have only found fault with the Council’s record keeping and some of its communications. To remedy the injustice caused to Mr X, the Council has agreed to apologise and make a modest payment. We are unable to make findings on parts of Mr X’s complaint.

The complaint

1. Mr X complains the Council gave misleading advice and instruction resulting in additional and unnecessary work being completed. He said this has caused him distress, delayed the build, and put him to unnecessary expense.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. We have spoken to Mr X and have considered the correspondence in support of his complaint. We have also made enquiries with the Council and have considered its response.
7. Mr X and the Council had the opportunity to comment on a draft version of this decision. I have considered all comments received before making a final decision.

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What I found

Building Regulations

8. Most building work will need building regulations approval. The regulations set standards for the design and construction of buildings to ensure the safety of people in and about the building. Building Regulations approval can usually be obtained in one of two ways:

• With full plans: the applicant submits detailed drawings for approval. Building work is subsequently checked on site for compliance with the Regulations (rather than compliance with the approved plans).
• With a building notice: notice of commencement of building work is given prior to the commencement of work. The various stages of the work are then inspected and approved but no plans are checked.

What happened

9. The Council’s building control functions are shared with other local councils as part of the Southern Building Control Partnership.
10. In June 2021, Mr X applied for planning permission to the Council to build a single storey extension at the rear of his garage which is attached to the side of his house.
11. The Council issued a decision notice in early August 2021.
12. The officer report was also issued at the same time. This noted, the site description and the relevant history. It noted Mr X’s house had been built on a site that had housed previous buildings that had since been demolished.
13. A Building Notice application was made and the Council wrote to Mr X in early February 2022 telling him he could start work on his extension.
14. Mr X said he employed a building and property company to start work on his extension in February 2022. Mr X said his builder dug footings to a depth of one metre.
15. Mr X’s builder paid the Council £840.00 in February 2022.
16. The Council’s senior Building Control Surveyor (Officer 1) visited the site on 25 February 2022. The inspection report noted the building plans were rejected at this time and said “excavations have been dug to one metre deep however this appears to still be on filled ground. [The] Builder to try digging a trial pit to see what the depth would likely be.” The report also noted that the estate had different foundations, appearing to be strip foundations to one metre which was unusual due to being against filled ground and not on a sloping site. The inspection note says the builder would investigate further.
17. During this visit, Mr X said Officer 1 told his builder to excavate the footings by a further metre, to find ‘virgin soil.’ This is disputed by Officer 1. Mr X believed virgin soil to be soil without any debris. He believed this to require digging to a depth of two metres.
18. Mr X said he queried this instruction, believing this was not in line with building regulations. Mr X said he was told that Officer 1 wanted to see ‘virgin soil’ rather than made soil.
19. Officer 1 conducted a second site visit on 1 March 2022. He rejected the building plans again. The inspection note says “met the builders on site, the trial hole has been dug further [this is] near to two metres and still finding fill. The builder to go back to the structural engineer for alternative design.”
20. Mr X said he had provided his builder with a copy of a soil report that was dated February 1995, this was when Mr X’s house (and the surrounding estate) had been built. Mr X said he believed that Officer 1 was fully aware of the soil report and was aware of the ground conditions of the estate. In response to the Ombudsman’s enquiry about this, Officer 1 said he was never provided with a copy of this report.
21. Mr X said the soil report showed an older structure had been demolished to make way for the estate. He noted that the report said, “the soil profile beneath the site typically comprised a layer of made ground 0.50 metres deep, occasionally extending to around 1.0 metre, overlying soft to firm silty sand clay head deposits.”
22. Mr X said his builder had excavated a small section to a depth of three metres, however, ‘made soil’ was still being found. Mr X said he was told excavations to this depth were dangerous.
23. Mr X emailed Officer 1 on 9 March 2022, following a visit from his structural engineer. He said:

• His builder had already excavated a small section up to 3 metres and this still had not revealed ‘virgin soil’, leaving him in an impossible situation.
• The structural engineer had provided a solution, offering to sink four piles into the corners of the extension. However, when discussed with his builder the guide price to complete the work would rise by a further £10,000.
• He had asked for advice from a third structural engineer, including revisiting an earlier suggestion of rafting the structure.
• Due to the cost, Mr X’s builder had suggested filling in the excavations and stopping the build.
• He did not want to stop the build and noted his neighbour had built an extension above their garage without the strengthening of foundations.
• He was also aware of another neighbour who had experienced similar difficulties but had managed to satisfy building control with foundations at 1.7 metres.

24. Officer 1 replied the same day. He said:

• He could not account for Mr X’s neighbour’s extension. However, the properties on his road were built on concrete foundations through the ‘made ground’ and into ‘virgin clay.’
• It was for Mr X’s structural engineer to justify the raft foundations and alternative designs noting the soft spots and the one-metre-deep trench already provided.
• Mr X’s house appeared to be on a strip foundation, however, other houses built on the estate were built on ‘piled’ foundations.

25. Mr X replied on the same day. He reiterated his earlier comments about the estate being built on 0.5 metre foundations and said it was difficult to justify spending more money on a third structural engineer due to Officer 1’s response. Mr X said his extension had now turned into a financial burden, causing stress, anxiety, and with the extra work causing unnecessary delay to his build.
26. Mr X spoke with Officer 1 over the telephone the following day. He said Officer 1 told him that making the structure free standing could solve the issues he was facing.
27. Officer 1’s notes recorded in the Inspection Report dated 10 March 2022 said “due to ground conditions the owner is considering removing the need for building regulations and making the office extension detached and therefore exempt. Advised should still speak to an engineer about a suitable foundation design. Owner to email when all options have been considered.”
28. Mr X also said he had a verbal conversation with Officer 1 at the same time.
29. Mr X said that on Officer 1’s verbal advice he decided to engage a third structural engineer at extra cost. Mr X said he believed Officer 1 had verbally told him that while the issue with building control could be solved by making the extension free standing (and not attached to his house/garage), he believed he was told it would still need to be rafted.
30. Mr X emailed the Council’s Surveyor in mid-March 2022. He said his structural engineer had produced a rafting design to accommodate the free-standing extension. He asked the Council if it required a further site visit before work could be started on the extension.
31. The Inspection Report notes on 22 March 2022 that the decision was now approved. It said Mr X had now sent in a revised plan with the extension being free standing. This meant the application was to be withdrawn.
32. Mr X said he had expected a reply in writing; however, he noted his builder had told him that he had received a phone call from Officer 1 in early April 2022 telling him the build could proceed.
33. Officer 1 responded to Mr X in early April 2022. He apologised for the confusion with the matter but said that he had told Mr X’s builder he could proceed. He also noted the application had been deemed exempt and a refund would be provided to Mr X’s builder.
34. Mr X said his builder filled in the excavated footings.
35. Mr X complained in October 2022. He said the Council’s Building Control had been aware of the ground quality issues relating to footings and foundations and it was unreasonable for it to advise his builder to dig deeper to find virgin soil when it was unlikely (due to the previous demolished structure on which the estate was built) that this would ever be found. Mr X also said:

• The Council’s advice had led to unnecessary time delays to the building project.
• The Council had caused unnecessary expense causing him to hire additional structural engineers to provide opinions and alternative schemes.
• An early conversation at the initial site meeting was all it would have taken to avoid the build delays and extra expense he was put to.
• The Council’s lack of advice had caused unnecessary expense for materials.
• He had been caused uncertainty, stress, and delay.

36. The Council responded at Stage One in early November 2022, it said:

• A Building Notice Application was submitted and this included structural calculations that were checked and accepted by the departments structural engineer on 1 March 2022.
• Mr X’s builder should have been fully aware of all requirements of the building regulations.
• Officer 1 was aware that the area was of high shrinkable soil but was not aware of any made-up ground.
• It had checked neighbouring properties, and none were identified as having made up ground.
• Officer 1 had conducted two site visits and had inspected excavation depths at 1 metre and had asked Mr X’s builder to excavate deeper to discover virgin ground.
• Building Control had a duty of care to both Mr X and any future owner, and it was imperative.

37. Mr X remained dissatisfied and asked for his complaint to be escalated to Stage Two.
38. The Council responded at Stage Two. It did not uphold Mr X’s complaint and said:

• Officer 1 had told Mr X’s builder to “go a bit further… as you will likely find virgin soil.”
• On the second site visit, Officer 1 had said he was “surprised Mr X’s builder had gone down to two metres which was more than a trial hole as previously mentioned..."
• Officer 1 said even at two metres there were still signs of made soil and asked Mr X’s builder to contact his structural engineer to obtain a suitable design. He gave some options and made suggestions for mini-piling and noted that the soil quality was strange for the site.
• Officer 1 was not aware at the time of the soil report or that the site used had previously had a large structure that had been demolished.
• The inspection notes referenced Officer 1 explaining Mr X was advised to speak with a structural engineer but there was no evidence he had been advised to instruct an additional structural engineer.
• It accepted there had been confusion due to Officer 1 speaking with both Mr X and his builder at different times.

39. Mr X complained to the Ombudsman in January 2023.

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Analysis

40. At the heart of this complaint is Mr X’s belief that if the Council had given him the correct advice and offered alternatives at a much earlier stage, he would have been saved time, extra financial costs, and the stress of the build. The Council disputes this. However, it accepts there was confusion due to Officer 1 speaking with both Mr X and his builder, but notes while Officer 1 gave alternatives, Mr X’s builder and surveyors should have been fully aware of building regulations.

Excavations

41. It is important to note that Mr X’s original application was for a single storey rear extension that would extend beyond the rear wall of the original house. Officer 1 completed two site visits and identified issues with the proposed building works, namely the condition of the soil.
42. Mr X believes Officer 1 told his builder to excavate to over two metres in order to find ‘virgin soil’. Mr X believes this requirement was unreasonable. The Council disputes this and while acknowledging there had been a conversation about a trial hole, Officer 1 was surprised that Mr X’s builder had excavated to two metres. Where an officer identifies a potential issue with proposed building works, we would expect them to bring this to the applicant’s attention. In this case, Officer 1 used his professional judgement to ask Mr X’s builder to confirm the soil conditions. I am unable to see any evidence of conversations between Mr X’s builder and Officer 1 about the depth and requirements for the excavations that was needed, however, I accept the Council admits to asking Mr X’s builder to ‘go a bit further to find virgin soil.’ I will address this point under my heading communication. However, on the point of the excavations I find this was something the Council was entitled to do and ask for, and therefore I do not find the Council was at fault here.

Soil Report

43. Mr X said he had provided his builder with a copy of a soil report in March 2022. He said this showed the condition of the soil and should have alerted the Council that digging for virgin soil was unreasonable. Mr X believed this was shared with Officer 1. In its Stage Two response, the Council disputes this and said while Officer 1 had commented the soil was strange for the site and that he was aware of high shrinkage soil, he had been unaware of the soil report. There is a clear conflict of evidence here. I am unable to determine if Officer 1 was aware of the soil report and therefore in the absence of evidence I am unable to make a finding, even on the balance of probabilities.

Instruction of a Structural Engineer

44. Mr X believes that Officer 1 verbally told him to instruct a third structural engineer. The Council disputes it told him to instruct a third structural engineer to consider the raft design. It also says Mr X had the advice of building professionals who should have been aware of the building regulations.
45. The inspection report dated 10 March 2022 says “the owner is considering removing the need for building regulations and making the extension detached and therefore exempt. Advised should still speak to an engineer about a suitable foundation design.” The Council in its Stage Two response said there was no evidence Officer 1 had advised Mr X to instruct an additional structural engineer. Mr X disagrees.
46. On this issue, I agree with the Council. I am not persuaded that Officer 1’s comments were a definitive instruction that Mr X had to follow. Rather it was a suggestion that Mr X may or may not wish to pursue.
47. From this, it logically follows that the Council cannot be held responsible for Mr X’s resulting costs.
48. I am unable to say whether the Council told Mr X to continue with a raft design in the verbal conversation and without any evidence I am unable to make a finding on this point.

Communication

49. The Council has accepted there was confusion due to Officer 1 speaking with both Mr X and his builder. I would agree. I also find the Council’s record keeping and notes are inadequate, particularly the recording of conversations. I also find the Inspection Reports lack sufficient detail.
50. This is confirmed following the Council’s Stage Two response, which gives a fuller account of the site visits on 25 February and 1 March 2022. I would have expected the fuller accounts at Stage Two to have been included in either the inspection report or notes accompanying it. They were not and therefore I find fault. I also note Officer 1 said he phoned Mr X’s builder to inform him the build could continue in March 2022. I would have expected Officer 1 to have written to Mr X to confirm this. I have seen no evidence this happened, this caused further delay, and this was fault. This delay caused Mr X confusion, frustration and put him to further avoidable time and trouble chasing the Council.

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Agreed action

51. Within four weeks of my final decision the Council has agreed to take the following action.

• Apologise to Mr X for poor communication and record keeping.
• Pay Mr X £100 as a symbolic payment in recognition of the fault I have identified with the Council’s communication and record keeping.

52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation by finding the Council was at fault causing an injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman