Summary: X complained the Council failed to decide whether a neighbouring development complied with building regulations. X also said the Council failed to take account of professional guidance and advice, and communicated poorly. We have not found the Council failed to have regard for guidance or evidence when it made its decision. We therefore cannot question the decision the Council made. We have not found the Council at fault for the frequency of its communication, or for failing to engage with X’s concerns. However, we have found the Council acted with fault by often changing its position and by not reaching a definitive view sooner. We have made recommendations to remedy the remaining injustice this caused X.

The complaint

1. X complains the Council:
1. Failed to decide whether a neighbouring development complied with building regulations over a prolonged period, changing its position four times within one year;
2. Failed to take account of relevant expert advice when making its final decision;
3. Provided mistaken advice about compliance with building regulations; and
4. Failed to communicate effectively.
2. X says the Council’s actions have caused avoidable frustration, distress and uncertainty for X and X’s partner. X says this has also affected their peace of mind and their enjoyment of their home, due to concerns about ground stability.

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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 significant injustice, or that could cause injustice to others in the future, 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 how the organisation made its decision, 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 discussed the complaint with X and considered information they provided.
7. I considered information the Council provided about the complaint.
8. Both X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Building Regulations

9. The Building Regulations 2010 (“the Building Regulations”) set out the required standards for building work. Generally, the Building Regulations set out the required standards, but do not specify how the standard should be achieved.

Approved documents

10. Approved documents give detailed advice on how to meet the legal requirements of the Building Regulations for some common situations.
11. There are 15 technical requirements in Schedule 1 to the Building Regulations. Each technical requirement corresponds to a letter. Relevant to this complaint, Part H concerns drainage and waste disposal. Approved Document H corresponds to Part H.
12. Approved documents may not be relevant for all situations and are subject to some limitations in application. Government guidance says following approved documents does not always guarantee compliance with the Building Regulations. Approved documents do not have to be followed for building work to meet the legal requirements. (Manual to the Building Regulations, July 2020)

Approved Document H

13. Part H2 of Approved Document H deals with the Building Regulations Requirement for water treatment systems and cesspools. The Requirement is defined as follows:
• “(1) Any septic tank and its form of secondary treatment, other wastewater treatment system or cesspool, shall be so sited and constructed that— (a) it is not prejudicial to the health of any person; (b) it will not contaminate any watercourse, underground water or water supply; (c) there are adequate means of access for emptying and maintenance; and (d) where relevant, it will function to a sufficient standard for the protection of health in the event of a power failure.”
• “(2) Any septic tank or holding tank which is part of a wastewater treatment system or cesspool shall be— (a) of adequate capacity; (b) so constructed that it is impermeable to liquids; and (c) adequately ventilated.”
• “(3) Where a foul water drainage system from a building discharges to a septic tank, wastewater treatment system or cesspool, a durable notice shall be affixed in a suitable place in the building containing information on any continuing maintenance required to avoid risks to health.”
14. Paragraphs 1.26 to 1.44 of Part H2 provide guidance on the design and construction of drainage fields and drainage mounds, to illustrate ways to comply with the Requirement. Relevant to this complaint, paragraph 1.27 states there should be a minimum of 15 metres between a drainage field and any building.
15. Paragraph 1.72 of Part H2 says the Requirement can also be met by following the recommendations made in building standard BS 6297:1983 (Code of practice for design and installation of small sewage treatment works and cesspools).
16. BS 6297:1983 was withdrawn and replaced by BS 6297:2007 in 2007. A further amendment was published in 2008. I refer to the current amended standard as “BS 6297” in this statement.
17. BS 6297 says drainage fields should be positioned as far from habitable buildings as is practical, with a recommended minimum distance of 7 metres.

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What I found

Summary of key events

18. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
19. In May 2021, X complained to the Council about a neighbour’s drainage installation. X said the installation was close to an outbuilding on X’s land, in contravention of relevant building regulations.
20. The Council inspected the site following X’s concerns. In September 2021, the Council confirmed to X it had received a building control application. In December 2021, the Council met X on site. It told X it was possible for an installer to comply with building regulations by choosing which guidance to follow. The Council said:
1. BS 6297 set a minimum distance of 7 metres from any habitable building; or
2. Part H2 of Approved Document H set a minimum distance of 15 metres from any building.
21. The Council said as the neighbouring installation followed BS 6297, the installation complied with regulations.
22. In January 2022, X wrote to the Council. X said they had researched the disparity between the required distance set out in the competing building standards. X said the only document that mentioned the distance between the installation and a building was Part H2, which said there should be 15 metres from any building.
23. In February 2022, the Council wrote to X. It said it had considered X’s points and believed it had wrongly interpreted the guidance during its site visit in December. The Council told X their neighbour would need to move the installation, as it was too close to X’s outbuildings. It said it would enforce this position, if necessary.
24. The Council said it visited the site again in February 2022 and measured the distance between the installation and main outbuilding. It recorded the distance as being 12-15 metres from the main outbuilding, documenting this complied with BS 6297.
25. In March 2022, X sought an update from the Council. The Council responded, telling X it was working with X’s neighbour and it hoped work would start once it agreed proposals to alter the installation and drainage field. The Council also told X it believed their smaller outbuilding had not been in place when construction began on the drainage installation. It said it had decided the drainage installation would need to be moved further from X’s larger outbuilding, but that X would need to move the smaller outbuilding further from the drainage installation. The Council also said building regulations did not have to account for the smaller outbuilding. The Council said it had based this decision on the order the outbuildings and drainage installation were built.
26. X wrote back to the Council to challenge this decision. X said building regulations for the drainage installation did have to account for the smaller outbuilding. X said both outbuildings had been constructed as one project. X asked the Council to revert to its previous decision.
27. The Council met with X and then re-confirmed its decision. However, it said X would no longer need to move the smaller of the two outbuildings.
28. X contacted an external building control agency, which advises local authorities including the Council, for advice. X said they received advice that the relevant guidance did not distinguish between buildings exempt from regulations and those that were not. X understood this drainage installation should be located 15 metres from any building. X sent this advice to the Council. The Council recognise the advice conflicted with its position and said it would review this further.
29. The Council said it carried out further site visits in April 2022. Later that month, it signed off the work as compliant with building regulations. The Council wrote to X to set out its position. It said it had decided the drainage installation did comply with building regulations. It set out its reasons:
1. The relevant Building Regulation was H2, Schedule One, of the Building Regulations 2010.
2. The Requirement in H2 made no reference to a minimum distance of 15 metres. The Council said this reference was instead set out in Approved Document H, which sought to provide practical guidance on how to comply with the regulations. The Council said the approved documents made clear that:

“Approved Documents are intended to provide guidance for some of the more common building situations. However, there may well be alternative ways of achieving compliance with the requirements. Thus there is no obligation to adopt any particular solution contained in an Approved Document if you prefer to meet the relevant requirement some other way.”

3. The applicable building standard was BS 6297. This had replaced the standard quoted in the approved documents (BS 6297:1983), so the Council could rely on this standard instead. This said it was good practice to site drainage fields as far away as practicable, accounting for prevailing winds, with a recommended minimum distance of 7 metres from habitable buildings. The Council said the drainage field was more than 7 metres from the larger outbuilding and therefore complied with building regulations.
4. It recognised there had been debate about whether the smaller outbuilding was a “building”, as set out in guidance. It said while it appreciated X had consulted with its advisory body, the Council was the decision-making authority.
5. The proximity of the drainage installation to the smaller outbuilding was not a good reason to refuse compliance with building regulations. The Council said it did not consider the smaller outbuilding was a “habitable” building.
6. There had been no sign the installation was performing poorly, or having any harmful impact on the surrounding environment.
3. X complained to the Council. X said the drainage installation should be at least 15 metres from any building, not just habitable buildings. X said the guidance the Council relied on referred to septic tanks and sewage treatment plants, not the system installed. X was concerned about the impact the drainage installation could have on the outbuildings.
4. The Council responded to X in May 2022. It set out its position with regards to compliance against the building regulations. I have summarised the Council’s response:
1. The Council said there were two distinct issues to address: whether the drainage installation complied with building regulations and the Council’s changes in position.
2. The Council recognised X believed the only way to judge compliance with regulations was to follow the guidance set out in the approved documents, which specified a 15-metre distance to buildings. The Council said there was an alternative approach set out in BS 6297, specifying a 7-metre distance. The Council said it had explained why it considered it could rely on this interpretation. It said it had sought legal advice to this effect. It said it could not add anything to this.
3. The Council accepted it had changed its position multiple times throughout. It said these changes in position had no direct impact on X’s property, such as through physical alterations, or led to X incurring direct costs. However, it accepted that reverting to its original position was a surprise and a cause for distress. The Council said it should have been able to set out its position earlier on. The Council apologised for this.
4. The Council said the drainage installation complied with building regulations. It said its inspections had found it working effectively, with no sign of unexpected environmental effects. The Council said X should contact its environmental health team to investigate if this changed.
5. X sought to escalate their complaint. X had not found any corroboration for the Council’s position. In contrast, X said several professional organisations and utility providers supported their position. X also raised concerns about the frequency of maintenance, the capacity of the installation, possible damage to property, and whether the Council’s decisions were impartial.
6. The Council met with X to discuss these concerns. In July 2022, the Council issued its final complaint response:
1. The Council said its letter of May 2022 set out its position. The Council reiterated this.
2. The Council said it had handled X’s complaints under its complaints procedure. It said officers responding at stages one and two had not been involved in the matter previously and had approached the complaint objectively.
3. The Council accepted that drainage fields would need regular maintenance. The Council said X’s neighbour had a service contract with the installer to complete routine checks and maintenance.
4. X had confirmed there had been no visible impact from the drainage fields so far. The Council again said X should contact its environmental health team should this position change.
7. Between July 2022 and October 2022, X and the Council exchanged further correspondence. I have summarised the nature and content of these exchanges:
1. X asked to meet with the Council’s Chief Executive. The Council responded, agreeing to the meeting, but reiterating it supported the position already set out.
2. X posed further questions before the meeting. These concerned:
1. whether nearby tree roots had been assessed as part of the installation;
2. whether the installation was too close to the boundary line; and
3. the volume of discharge onto X’s side of the boundary.
3. The Council said a competent person had designed the installation. It said the Council’s building surveyors had confirmed the work had been completed in accordance with the designed scheme. It said the drainage network was above ground level, so issues with tree roots would not occur. The Council also said while the installation appeared close to X’s boundary line, this was cosmetic. The pipework itself was more than two metres from X’s boundary line.
4. The Council said building control information was not a matter of public record, being private data. However, it offered assurances the design of the installation was correctly sized and functional for the neighbouring property. It said the design and standard of construction negated any concerns about possible subsidence.
8. In September 2022, X met with the Council’s Chief Executive and other senior officers. In October 2022, following this meeting, X asked further questions about the installation. X recognised the Council had decided the installation complied with building regulations, but sought this information.
9. The Council sought technical information from the installer. Records I have seen show it analysed this information in detail. The records I have seen do not show whether the Council shared its findings with X.

Analysis

Application of building regulations

37. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, by showing it took account of the relevant guidance and fully considered the facts of the case, we cannot question whether the decision was right or wrong. This applies regardless of whether the complainant disagrees with the decision the organisation made.
38. The Council’s position is the drainage installation complies with the Requirement set out in Part H2 of the Building Regulations. It says the location of the installation adheres to BS 6297, being more than 7 metres from a habitable building. The Council does not consider the smaller outbuilding to be habitable. This, with its observations from site visits, building regulations application, and the technical information from the installer, is the basis for its decision.
39. The Council says it obtained legal advice that informs its position. I have not seen a copy of this advice, but believe it would be moot to do so. The Council has set out its position in its complaint responses. The Ombudsman could not decide if the Council’s legal advice correctly interpreted the Regulations.
40. X says the Council has erred by failing to take account of professional advice and guidance, including from its own professional body, which says the installation should be 15 metres from any building. This is the guidance set out in Part H2 of Approved Document H. The Council says it can rely on the guidance set out in BS 6297 as an alternative approach to compliance, because Part H2 says it can do so.
41. As set out in paragraph 12, adhering to the guidance set out in approved documents does not guarantee compliance with building regulations. Further, approved documents do not have to be followed to achieve compliance with the Requirement (set out in paragraph 13). This means the Council, as the planning authority, has professional discretion to decide if a development complies with Building Regulations. It would not be fault for the Council to depart from the approved documents, provided the Council can show it has had regard for the guidance and its decision is rooted in evidence.
42. I have considered the steps the Council took to investigate X’s concerns and arrive at a decision, and whether it can show it had regard for the guidance and facts of the case. The Council visited the site multiple times to inspect the installation and gather evidence. It exchanged a large volume of correspondence and met with X several times to discuss and respond to X’s concerns. It also sought and considered specification data from the installer to ensure its decision was robust. I have seen a copy of the Council’s analysis of this information, about the capacity and performance of the installation, and which states it was purpose-built for the setting.
43. The Council’s multiple changes in position - which I have addressed below – were the result of attempts to interpret and apply the Building Regulations properly, in the face of new considerations. The Council’s second position was in line with the views expressed by its professional body. However, the Council changed its view after conducting a site visit and seeking legal advice. When it eventually reached a definitive position, the Council explained its rationale in the correspondence sent to X. It referred to specific sections of the Regulations, Approved Document H, and BS 6297 in its explanation. While I recognise X strongly disagrees with the Council, I am satisfied the Council had regard for the guidance and advice in reaching its decision.
44. I have not therefore found the Council acted with fault, by failing to have regard for the facts of the case or appropriate guidance when it made its decision. As a result, I cannot question the decision the Council made.

Communication and changes in position

45. I have not noted prolonged delay by the Council, or a refusal to engage with X’s substantive concerns. X told me the Council did not provide an update when it changed its view, from its second position to its third. The Council had told X the installation would need to be moved, or it would take enforcement action to make this happen. X sought an update when nothing happened, only to be told the position had changed. I note this change in position coincided with the Council’s site visit in February 2022. This visit led to a re-evaluation of its position, with the Council appearing to need time to assess its next steps.
46. It would have been better if the Council had told X about its change in position, before X had to ask for an update. However, records I have seen show the Council generally exchanged frequent, detailed correspondence with X, and met with X several times to discuss their concerns. In the context of these wider exchanges, I do not consider this individual incident amounts to the Council acting with fault. I have not found the Council at fault for the quality or frequency of its communication.
47. That said, the Council’s frequent change in position caused X avoidable uncertainty and frustration. The Council adopted four positions on compliance:
1. The installation complied with regulations.
2. The installation did not comply with regulations and would have to be moved.
3. The installation and X’s smaller outbuilding did not comply with regulations and would have to be moved.
4. The installation did comply with regulations, and neither the system nor X’s smaller outbuilding had to be moved.
48. The Council’s second position raised X’s expectations. X then experienced uncertainty and distress at the prospect of having to move their outbuilding, for the Council to later decide neither course of action was warranted. The changing positions caused distress that could have been mitigated or avoided, had the Council sought advice sooner. The Council accepted it acted with fault by failing to reach a clear position sooner. It said it should have sought legal advice at an earlier stage, so it could have avoided the frustration and distress it caused X by changing its decision. I understand the Council sought legal advice between adopting its third and fourth positions.
49. I recognise the Council accepted it acted with fault and I have reached the same conclusion. I agree it should have sought advice sooner, when it became clear the circumstances were complex. The Council apologised for the injustice caused, providing a partial remedy. However, this does not fully address the injustice to X.

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Agreed action

50. Within four weeks of the final decision being issued, the Council has agreed to:
1. Pay X £350 in recognition of the avoidable frustration, distress and uncertainty caused by the Council’s faults.
2. Share the findings of this investigation with relevant officers, so as to identify wider points of learning.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman