Summary: Mr X complained that the Council did not properly deal with a planning application or enforcement of building regulations compliance. The Council is at fault because its communication to Mr X was not clear. The Council has provided an appropriate remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal with building control relating to works at his house properly because it

• failed to engage in dialogue regarding the request to consider an exemption from building control requirements.
• failed to accommodate disability-related needs in relation to communication.
• made errors and omissions in the processing of the planning application leading to deemed consent.

2. Mr X says his development should be exempt from building control requirements.

Back to top

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 provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
6. 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)

Back to top

What I have and have not investigated

7. I have investigated that part of Mr X’s complaint about how the Council has dealt with enforcement of building regulations compliance.
8. I have not investigated that part of the complaint about planning permission because this did not cause Mr X any significant ongoing injustice.

Back to top

How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Building Control and Building Regulations

11. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
12. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
13. A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building inspectors to carry out this work.
14. 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 Council’s inspector or an independent approved inspector will visit the site at various stages of the work to check compliance with building regulations.
15. There are rights of appeal against building regulation decisions. The first step is to ask the building control body for a ‘determination’ if approval is refused or the decision is unfair. If the building control body says work does not comply with building regulations, the developer can appeal to the secretary of state. If the Council has served a building regulations enforcement notice, the appeal right is to the magistrate’s court. Details of building regulations appeal can be found at www.gov.uk

What happened?

16. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
17. Mr X applied for planning permission in January 2023. The Council granted deemed consent for the development in March 2023 due to a delay in determining the application.
18. Mr X began to construct his development.
19. In July 2023 the Council’s Building Control department contacted Mr X asking him questions about his development. It informed Mr X the development was subject to building regulations.
20. Mr X contended the development could be considered outside of building regulations. The Council wrote to Mr X in August 2023 with a final determination that the development was subject to building regulations and explained why.
21. Mr X requested the Council exercise discretionary powers to not require building regulations compliance.
22. The Council offered a meeting in February, which it then rescinded. The Council offered a site visit, subject to a building control application and payment of the normal fee.
23. Mr X complained to the Council that it did not engage in dialogue about his request and didn’t communicate properly with him regarding his disability-related needs. The Council partially upheld Mr X’s complaint.

Analysis

Exemption from building control

24. The Council’s complaint response said:
• It should not have offered a meeting to Mr X in February 2024, as exercising discretionary powers was not an option and this should have been explained earlier.
• It accepted its communication could have been better and apologised.
25. Planning permission and building control compliance are separate requirements. The responsibility for building control compliance is on Mr X.
26. I agree with the Council. Mr X made an assumption that the deemed planning consent meant he did not need to seek building control compliance. The Council assessed the situation and decided he did. It provided a very clear determination in both August 2023 and February 2024, justifying the reasons it made its decision. This is not fault by the Council.

Communication

27. As part of my investigation, the Council said, “We do uphold Mr X’s complaint in respect of a failure to accommodate disability related needs in relation to communication for the reasons identified in our Stage 2 response.  As part of our ongoing commitment to equipping our staff with the skills needed to perform at the highest level, we have commenced training with regards to Neurodiversity and we plan to develop this with reference to engagement with our residents.”
28. I agree this is fault by the Council. The Council has already apologised in its complaint response. I consider the Council’s response above appropriate.

Back to top

Decision

I find fault causing injustice. The Council has already provided an appropriate remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman