Summary: Mr and Mrs X complained the Council failed to act following the issue of building notices to a neighbouring property to ensure they were followed. We found the Council delayed carrying out a monitoring visit after it issued a dangerous structure notice. It also failed to consider whether it should act to encourage compliance with the notice. The Council will apologise and take action to prevent reoccurrence.

The complaint

1. Mr and Mrs X complained the Council failed to act following issuing a dangerous structure notice and following the section 81 demolition notice to ensure they had been followed.
2. They say it has caused them distress and anxiety and they believe their house is being damaged.

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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 an injustice, 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 the decision making, 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(a), as amended)

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How I considered this complaint

6. I have considered:
• The information provided by Mr and Mrs X and discussed the complaint with them;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mr and Mrs X and the organisation 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

Law and guidance

8. Councils have powers to protect the public if it considers a building or structure to be unsafe. It can order works to remove the danger, demolish the building or demolish the dangerous part of the building and remove any rubbish resulting from demolition. If the owner doesn’t follow the order the council can carry out the works and charge for its costs.
9. Councils should only act without allowing the building owner to repair the building when there is immediate danger. Councils should carry out a risk assessment considering the consequences of the dangerous condition, the likelihood of those occurring and the seriousness of the situation if the consequences did arise.
10. The temporary shoring up of a property does not prevent it from being a dangerous structure. (London CC V Jones [1912] 2KB 504)

The Council’s Enforcement Policy for Building Control

11. The policy says action should be taken where the public’s health is put at risk. Or there is a significant impact due to negligence, incompetence, or blatant disregard for the law.
12. In dangerous or neglected building cases the Council will work with the building owner to avert and remove the danger. In cases where there is a lack of co-operation it will approach the magistrates court to seek an order requiring the building owner to make the building safe. Where there is immediate danger, the council will carry out the minimum amount of work to remove the danger and recover the costs from the building owner.
13. When showing compliance an assessor must consider:
• The degree of risk and seriousness of the contravention.
• General attitude and history of the offender and likelihood of continuation or recurrence.
• Effectiveness of enforcement options.
• Any legal imperatives or guidelines.
14. Under the policy the Council can issue a statutory notice where there is:
• a clear breach of law,
• a significant risk to public health and safety,
• a specific remedy and
• a timeframe can be set.
15. In cases of negligent or wilful non-compliance the Council should consider prosecution. When considering prosecution the Council should consider the level of risk, whether harm has been caused, and the impact of prosecution.

What happened

16. In early June 2021 a fire broke out at the house next door (Building A) to Mr and Mrs X (Building B). This caused damage to both houses. The Council attended the properties the following day to inspect them. It reported damage to both roofs. It noted building A had extensive damage to the roof including damage to rafters, ceiling joists and the support joists for the rear floor. It noted the owner had agreed to block up the door and gate to prevent access by the public.
17. The Council issued a dangerous structure notice to Mr X in early June. It reports that fire damage had occurred to the roof. It required him to take immediate action and to then advise the Council within seven days the structure being fixed. A similar notice was issued to building A at the same time.
18. The Council carried out a monitoring visit in mid-February 2022. It noted the hip and ridge were still in position on building A. It carried out a further visit in late May 2022. It recorded that the building A had been secured and the roof removed. It therefore asked for a demolition notice.
19. In early June the Council sent a section 81 demolition notice to building A. The notice required the owner to act within the next 28 days. The action included shoring up and weatherproofing adjacent building, removing demolition rubbish, and making arrangements to disconnect water, gas, and electricity supplies.
20. In early August 2022 the Council carried out an inspection of building B. Following the inspection, it closed the dangerous structure file. During the inspection it raised further concerns in relation to building A’s eaves and sent correspondence to the owner.
21. In October 2022 the Council recorded the outstanding dangerous structure issue with the eaves had been resolved and it closed the file.
22. In mid-November 2022 the Council carried out an inspection of building A it noted that weatherproofing had been placed on the gable wall of the adjacent building, building B. It concluded that this was satisfactory, and it would continue to monitor the building.
23. The Council carried out a monitoring visit in early February 2023 and confirmed the weatherproofing remained in place.

Findings

Dangerous structure notice

24. The Council issued a dangerous structure notice on building A in June 2021. It did not seek to remove the danger itself. Case law is clear that Council’s should ask the owner carry out the work and only step in where there is an immediate risk to the general public. There is no evidence the structure was causing an imminent risk and therefore the Council are not at fault for its decision to allow the owner to undertake the work.
25. The Council had a duty to consider whether the owner of building A was cooperating with it and the dangerous structure notice. The Council did not carry out any checks on the property until February 2022. This is eight months later and is a significant period to wait to check the owner has taken action to remove the danger. This is fault.
26. I appreciate the Council’s comments the owner of building A had agreed to block the door and gate to prevent access to the property which meant the building was safe. The Council issued its dangerous structure notice despite this assurance and therefore it should have ensured the notice was being followed. Particularly given the temporary shoring up of a property does not remove the dangerous structure.
27. Had the Council carried out an inspection sooner it does not mean it would have taken further action. It would have had to consider the circumstances in line with the factors outlined in its policy. I cannot say that had it would have taken further action against the owner of building A which would have resulted in action being taken quicker. This has left a degree of uncertainty for Mr and Mrs X who feel frustrated that things could have happened sooner.

Demolition notice

28. The Council issued a section 81 notice to the owner of building A. It required him to weatherproof the adjoining property and remove rubbish. The Council has carried out a visit and determined that weatherproofing has been applied. I appreciate that Mr and Mrs X are unhappy with the method of weatherproofing and do not feel this is sufficient. The legislation does not stipulate the type of weatherproofing. The Council did inspect the property and reached a decision following this. This is a matter of professional judgement. There is no fault in the Council’s decision-making process.
29. The Council has considered whether to take further action to enforce the removal of rubbish, which lies within the garden boundaries, from building A. It has inspected the site and obtained photos showing that bricks remain on site. It concluded that it is not necessary to take further action as this rubble may be used for hardcore when the building is rebuilt. I appreciate that Mr and Mrs X disagree with this decision. However, there are not sufficient ground for the Ombudsman to question the merits of this decision. The Council were entitled to reach this decision and there is no evidence of administrative fault as the Council considered the information available.

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Agreed action

30. Within one month of the final decision the Council will:
• Apologise to Mr and Mrs X for the uncertainty caused by its delay in carrying out a monitoring visit for the dangerous structure notice.
• Remind staff of the importance of arranging monitoring visits within an appropriate timescale of a dangerous structure notice.
• Remind staff of the importance of including their rationale – whether it is allowing the owner to undertake repairs or undertaking that duty itself – with reference to the Council’s policy.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I have found fault leading to injustice. The Council will apologise for the injustice caused and take action to prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman