Summary: Mr D complains about the Council’s handling of several planning applications, lawful development certificate applications and an Enforcement Notice. We cannot investigate this part of the complaint as Mr D has already appealed to the Planning Inspectorate. Nor will we investigate this complaint about the Council’s Building Control service as this is unlikely to lead to a different outcome.

The complaint

1. The complainant, I shall call Mr D says the Council misled and misinformed him over a 3-year period on his planning applications for extensions to his home. He also complains the Council failed to notice major structural issues with the build, allowing his builder to continue with the project.
2. He wants an investigation and compensation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister.
6. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome.

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How I considered this complaint

7. I considered information provided by Mr D and information on the Council’s website.
8. I considered the Ombudsman’s Assessment Code.
9. The complainant now has an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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My assessment

10. Mr D raises many concerns about the Council’s processing of planning applications and Lawful Development Certificate applications. The Council also served an Enforcement Notice against him for unauthorised development. However, he has appealed these to the Planning inspectorate, therefore the restriction explained at paragraph 4 applies. This is the case even if the appeals did not or could not provide complete remedies for all the injustice claimed.
11. Following the failure of his appeal against the Enforcement Notice, Mr D took the unauthorised extension and rear dormer window down. Mr D says during this work, he discovered irregularities. He says the Council’s building control inspector should have noticed these failures when the building was in progress. This would have stopped his building from continuing and Mr D would not have spent money on completing a project which did not meet building regulations.
12. When carrying out their duties under the Building Regulations, local authorities will visit developments at various stages. But they will not be present for most of the project and do not act as a ‘clerk of works’. On request and when satisfied after taking “all reasonable steps” that the Regulations have been met, they must issue a completion certificate. This is not a guarantee that all works have been done to the required standard.
13. But even if the Council was at fault in not thoroughly inspecting the building work, we would not could not provide a remedy. The courts have held (Murphy v Brentwood District Council (1990)) that “a council cannot be held responsible for economic loss for the cost of remedying a defect that resulted from a local authority’s failure to ensure that a building complied with the building regulations”. It is up to the person who commissioned the work to ensure the building complies with the Regulations.
14. It is our view that only in exceptional circumstances should we seek to impose an obligation on councils where the courts have held there should be no liability in law. I have seen no exceptional circumstances which would lead me to decide to start an investigation into the Council’s actions in this case.

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Final decision

15. I cannot and should not investigate this complaint because:
• We cannot consider any issues about any planning application, Lawful Development Certificate application or Enforcement Notice which has been the subject of an appeal to the Planning Inspectorate.
• In view of the matters described in paragraphs 11 to 13 above, it is unlikely that further investigation of the Council’s Building Control function will lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman