Summary: The Ombudsman will not investigate this complaint about the advice the complainant received from the Council’s building control officer. This is because it is unlikely an investigation by the Ombudsman could achieve the outcome the complainant wants.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about the advice he received from the Council’s building control officer. Mr X says he is likely to incur costs as a result.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe we cannot achieve the outcome someone wants.

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

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How I considered this complaint

3. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision.

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What I found

4. Most building work will require building regulation approval. The regulations will set the standards for design, construction and ensure the health and safety of the people living in or around the building.
5. The council will normally visit the site at various stages of the build. But councils do not act as a clerk of works and the responsibility for compliance with the regulation’s rests with the building owners and builders. The Council’s role is to maintain the building standards for the public in general rather than protect the private interests of an individual.

What happened

6. Mr X applied to the Council for prior approval to extend his home. The Council approved the application and the building works started. A building control officer from the Council visited the site while the extension was being built. During one of these visits the officer told Mr X that decking was needed to make the outside of the property safe. The decking was built as required and the Council issued the completion certificate in April 2020.
7. Shortly after this, planning enforcement officers from the Council contacted Mr X as it had received a complaint about a possible breach of planning control. The enforcement officer told Mr X that the decking needed planning permission. He could apply for permission retrospectively or the decking would need to be removed.
8. Mr X has complained to the Council about the advice he received from the building control officer. He says he was never told that planning permission was needed and the possible height restrictions for the decking were not mentioned. Mr X says he has now been told that permission for the decking is likely to be refused and it will need to be redesigned. Mr X says this will incur costs that could have been avoided if he was properly advised initially by the building control officer.

Assessment

9. I will not investigate this complaint about the advice the Council’s building control officer gave Mr X. This is because an investigation is unlikely to be able to achieve the outcome Mr X wants.
10. Mr X says he was not properly advised by the building control officer and he is likely to incur significant costs replacing the decking. It is not possible for me to know for certain what was discussed during the site visit between Mr X and the building control officer. But regardless of this, the decking was necessary and without it the extension would not have complied with building regulations. I understand Mr X says the officer should have told him about possible height restrictions for the decking. Had he done so, Mr X says he could have changed the design as he has now been told a planning application for the decking in its current form is likely to be refused. However, it is the property owner’s responsibility to ensure they comply with the relevant regulations and have the necessary planning permission for a development.
11. Mr X says the Council should pay for the additional costs to replace the decking if planning permission is refused. But I cannot say the Council should be responsible for any additional costs. The courts have held that councils are not liable for pure economic loss, even if the council has been negligent. The Ombudsman takes the same view as the courts and we will not usually investigate complaints where the main issue is one of pure economic loss. Furthermore, if Mr X disagrees with the Council’s planning decision once it is made, he can appeal to the Planning Inspectorate.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is unlikely an investigation by the Ombudsman could achieve the outcome the complainant wants.

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Investigator's decision on behalf of the Ombudsman