Summary: Mr X complained about how the Council considered his planning and building control concerns regarding works to a building he lives in. We found no fault in the process the Council followed to investigate his concerns. It reached decisions it was entitled to make. Other concerns Mr X has about the standard or cost of works is a civil matter between the property owners.

The complaint

1. The complainant, Mr X, complained about the Council’s handling of his planning and building control concerns within a block of flats. He said:
• it failed to properly carry out a full and proper inspection of works and separation of a neighbouring flat;
• it wrongly relied on information provided by the leaseholder, and focussed only on current use and ignored the physical separation and intent of use; and
• its building control accepted a regularisation form but failed to confirm no internal division or structural work had taken place.
2. Mr X said, as a result, he lost trust in the Council and is experienced distress and uncertainty about the building safety. He also said his service charges and legal rights as a leaseholder had been impacted.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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(1), as amended)

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What I have and have not investigated

7. I have investigated Mr X’s complaint regarding the Council’s handling of his planning and building control concerns since early 2024 when he reported his concerns to the Council.
8. I have not investigated any concerns Mr X may have about his service charges and decisions by the management company for the block of flats. Such matters can be considered by the First Tier Tribunal (Property) or are civil matters.

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How I considered this complaint

9. I considered evidence provided by Mr X and 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 received before making a final decision.

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What I found

Relevant law and guidance

Planning enforcement

11. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
13. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
14. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60)
15. Planning enforcement action is subject to statutory time limits. For breaches prior to 25 April 2024, the council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Building Control and Building Regulations

16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. Other building control complaints which we would not normally investigate:
• Works done before purchase. We would expect that a person purchasing a property would have a full survey completed before completing the purchase. If a defect is discovered in work completed before the purchase we would expect the building owner to have a remedy against either the person who carried out the survey or the previous owner.
• A dispute about the quality of 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.
22. Owners of buildings may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

What happened

23. Mr X bought his flat in late 2023 which is located in a small block. Other flats were also sold around the same time with tenants already living there.
24. The block is owned by a management company which Mr X and other leaseholders became a member of, following their purchase.
25. In early 2024 Mr X told the Council about concerns regarding works which had taken place within the block. He said a flat had been separated into two separate units. He also had concerns about roof works taking place at the time.
26. The Council arranged for its planning enforcement to consider Mr X’s concerns. It made enquiries with the directors of the management company, met with owners, and carried out an inspection of the flat. It found:
• a separate studio room had been created from a flat. However, it was unoccupied, unable to be used as a self-contained unit due to lack of connections and utilities, and the owner’s intention was for tenants of the flat to also use this room; and
• no planning breach had therefore been identified, but it told the owner the room should only be used as part of the next door flat.
27. The Council also arranged for its Building Control to make enquiries with the directors of the management company. It considered the responses it received, information provided by Mr X, and carried out two inspections. It found:
• works to separate the flat with a separate room had occurred several years ago by previous owners. The current owners had not done works to separate the flats. It found no enforcement was necessary as planning enforcement had not considered this a separate flat and the works was immune from planning enforcement action.
• works to the roof was due to water ingress. It received a regularisation form from the owners, questioned the works, and found what had taken place to be maintenance and repair work which therefore did not requiring approval. Following an inspection, it asked the owner to add some more insulation and signed off the work with no further concerns about the roof.
• works to the chimney had taken place. However, no consent was required as this was considered necessary maintenance and repair.
28. In Autumn 2024 Mr X complained to the Council about its handling of his planning and building control concerns relating to the flat separation and works to the roof and chimney. He raised safety concerns about the works that had taken place. He also said the management company was charging him as a leaseholder for part of the works.
29. In response the Council did not uphold Mr X’s complaint. It found it had properly considered his planning and building control concerns. It explained the steps it had taken to investigate his concerns, but no planning control breach existed. It also had not found building control concerns which should be actioned, and confirmed it found no evidence strengthening work to the roof had occurred.
30. Mr X asked the Ombudsman to consider his complaint. He remains of the view the Council failed to properly consider his planning and building control concerns relating to the separation of flats, and the safety of the works which had been carried out.
31. Mr X has since said he is in dispute with the management company regarding service charges, which is subject to a Tribunal appeal. He said as part of the appeal the owner’s costs includes strengthening of the roof, but the Council’s building control did not see any evidence of this.

Analysis and findings

The Council’s planning enforcement

32. I have found no fault by the Council in how it considered Mr X’s concerns about alleged planning control breaches within the block. This is because it:
• considered Mr X concerns and evidence;
• sought information from the management company or owners. It considered the information provided and records available to the Council;
• carried out an inspection; and
• found the separation had taken place several years ago and would therefore be immune from enforcement action. It also acknowledged it was not the current owners which had done the works, and their intention was for the relevant flat to use the disputed room as part of the same unit.
33. As I have not found fault in the process the Council followed to reach its view, I cannot criticise its decision. Its finding that no breach of planning control had occurred was therefore a decision it was entitled to make.
34. I also note Mr X bought his flat around the same time as other owners. The sales brochures showed the relevant flat and the room was already separated in those pictures. Mr X should therefore have been aware of this prior to his purchase.

The Council’s building control

35. I have not found fault in the process the Council followed to consider Mr X’s concerns about the safety within the block and the standard of work carried out. This is because it:
• carried out an initial inspection;
• sought information the management company and the owners, including Mr X, and considered the information it received; and
• considered a regularisation application for works and carried out a further inspection before this was signed off.
36. Without fault in the process the Council followed to reach its view, I cannot criticise its decisions. The Council’s building control officer was entitled to exercise their professional judgement.
37. I also note the Council’s role was not to act as a guarantor or a site manager. Rather, its responsibility was to determine whether the works carried out was safe and compliant with building regulations. It was satisfied it did.
38. Any concerns Mr X may have about the standard of work or the cost of works, is a matter between the owners of the block and the management company. This includes any concerns about statements made by the management company in the Tribunal process regarding the strengthening of the roof.

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Decision

I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman