The Ombudsman's final decision:
Summary: Mrs X complained the Council gave factually incorrect information about the requirements of the building regulations. The Ombudsman found there was fault causing injustice which the Council agreed to remedy.
- Mrs X complained the Council gave factually incorrect information about the requirements of the building regulations. Mrs X said this:
- meant that unnecessary works were undertaken at her property.
- resulted in extra costs of over £9,000.
- caused much stress and upset for her and her husband.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- As part of the investigation I have considered the following:
- Mrs X’s complaint, supporting information, and the information we discussed by telephone.
- The Council’s response to Mrs X’s complaint and supporting evidence.
- The Building Act 1984.
- The Building Regulations 2010.
What I found
- Councils have powers to control building safety, given to them by the Building Act 1984.
- Most building work will need Building Regulations approval. The Building Regulations 2010 (the Regulations) set standards for the design and construction of buildings to ensure the safety of people in and about the building.
- Building Regulations approval can be confirmed by either a council building control inspector, or a private sector approved inspector. Approval can usually be obtained in one of three ways:
- With full plans: the applicant submits detailed drawings for approval. Building work is subsequently checked on site for compliance with the Regulations (not compliance with the approved plans).
- With a building notice: notice of commencement of building work is given prior to the commencement of work. The various stages of the work are then inspected and approved but no plans are checked.
- By regularisation: compliance with the Regulations can be certified after the work is done, but only by a council building control service.
- Ground heave is defined as upward movement of the ground associated with expansion of clay soils which swell when wet. It can lead to serious structural damage to buildings and foundations.
- Heave can occur in soils where a tree has been removed. Trees can absorb up to 150 litres of water a day, depending on the type and size.
- If heave is considered likely to be a problem, or if foundation depth exceeds 1.5 metres, cellular structures like Claymaster should be used. It is designed to create a compressible void which allows the ground to swell without damaging building structures.
- I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
- Mrs X and her husband, Mr X, received planning permission to build an extension to their home. They sent a building notice to the Council for approval on 15 October 2020, which the Council accepted.
- Mr X is a builder and planned to do the work himself. A building control surveyor (surveyor A) inspected the work on 16 October. At that stage, Mr X had started to dig the foundations for the rear left corner of the extension.
- Surveyor A told Mr X the foundations must be 1.5 metres deep because of a sycamore tree less than 9 metres away in his neighbour’s garden. Surveyor A also said Mr X should use Claymaster in the foundations because if his neighbour removed the tree it could cause heave in the soil, which could damage the foundations. Mr X agreed.
- Mr X contacted local suppliers to try to source Claymaster. He also contacted the company. They told Mr X he did not need Claymaster.
- Mr X telephoned Surveyor A on 19 October to ask if using Claymaster was necessary. Surveyor A did not change his opinion.
- Mr X had ordered concrete for the foundations which was due to be delivered on 20 October. He did not have time to order and install Claymaster before the concrete arrived, so he had to cancel the delivery.
- A second building control surveyor (surveyor B) attended on 20 October. Surveyor B noted Mr X was finishing the last section of footings and had dug the rest to the agreed depth of 1.5 metres. Mr X told surveyor B he did not want to install Claymaster.
- Surveyor B spoke with surveyor A by video call from Mr X’s home. Surveyor A maintained his view that Mr X needed to use Claymaster, but only for the rear left corner of the foundations near to the neighbour’s tree. Mr X agreed and said he would also install it around the side of the extension as well.
- After 20 October there was continuous rain. This caused the footings Mr X dug to collapse and flood.
- Mr X contacted building control and spoke with a principal building control surveyor (surveyor C) on 21 and 22 October. Surveyor C told Mr X to install shuttering against the sides of the footings, such as plywood and timber.
- Mr X asked surveyor C about the need for Claymaster, requested by surveyor A. Surveyor C would not change surveyor A’s decision.
- Mr X was concerned about installing Claymaster with shuttering in the footings. Surveyor C advised Mr X to leave the shuttering in place as it should not affect the strength of the foundations. He said Mr X could also use reinforcing bars if he was concerned.
- Mr X installed shuttering to prevent further damage and hired a pump to remove some of the water.
- When Mr X re-arranged his concrete order he had to pay more for a higher grade of concrete and reinforcing bars because of the damage the rain caused to the footings.
- Mr X spoke to surveyor B again on 23 October. He wanted a supervisor to attend the site, but not surveyor A.
- Surveyor C attended to assess the work on 26 October. He did not consider Mr X needed to install Claymaster.
- According to Mrs X, surveyor C said the impact of their neighbour’s tree is minimal, so surveyor A was wrong to say they needed to use Claymaster. She said he offered to process a complaint for Mr and Mrs X personally.
- Surveyor C told Mr X, despite the foundations being wet, he could pour concrete at that stage.
- Mr X was concerned, so contacted his structural engineer while surveyor C was on site. Surveyor C’s site notes state the engineer was OK with concrete being poured, provided there was no more than 30 to 50 millimetres of water in the trench. He suggested Mr X install three reinforcing bars at the top and bottom. Surveyor C agreed with that assessment.
- On the advice of his structural engineer, Mr X arranged for steel case driven piles to be installed to the flooded corner of the footings on 6 November, along with reinforcing bars.
- Mrs X complained to the Council on 17 November about the negligent advice and direction the Council’s planning department gave. She said the Council gave factually incorrect information about the requirements of the building regulations, meaning extra work. She said a different inspector told them surveyor A made two errors, because the impact of their neighbour’s tree was minimal, and they did not need Claymaster. Mrs X asked the Council to pay the added costs they incurred.
- The Council responded to the complaint on 26 November. It said:
- The evidence seemed to suggest there was probably no need for Claymaster. However, there had been no analysis or investigation of the soil and the judgements made were all subjective.
- The request for Claymaster was advice and not enforced.
- It recognised the advice led Mr and Mrs X to incur costs and offered to pay for the cost of the Claymaster.
- The Council was not liable for the collapse of the footings and subsequent events. Mr X should have risk-assessed and identified the need for support to the footings in case of rain. Even without delays, the Council said Mr X should have supported the footings.
- The added work of piling and reinforcement bars were Mr and Mrs X’s choice after advice from their engineer, not instructions from the Council. The Council was satisfied Mr and Mrs X could have poured the concrete without the need for piling.
- It accepted it gave Mr and Mrs X some misleading advice and there was a delay in the works.
- The costs incurred were not fully the fault of the Council and could have been reduced by Mr X acting competently.
- It maintained its view Mr and Mrs X could have poured the concrete without added reinforcement and piling.
- The extra work was a recommendation of Mr and Mrs X’s engineer, and the Council was not liable for the costs.
- I have considered statements the Council provided from surveyors A, B, and C. I have also considered a statement from Mr and Mrs X’s structural engineer.
- Surveyor A states when he assessed the site on 16 October 2020 the ground appeared to be sandy clay. A sycamore tree in a neighbour’s garden was the only thing affecting the depth of the foundations. Due to the clay soil and the effects trees can have on this soil, NHBC chapter 4.2 for building near trees determined the depth of the foundations. The tree was less than 9m away, so the foundations needed to be 1.5 metres deep.
- Surveyor A also states Mr X told him he was in dispute with his neighbour about removal of the sycamore tree. Surveyor A considered heave could occur if the tree was removed, which could damage the foundations. He therefore told Mr X he should use Claymaster in the foundations with a beam and block floor. Mr X suggested he was happy to use Claymaster as he wanted to do everything correctly.
- Surveyor A said Mr X telephoned him on 19 October to ask if Claymaster was necessary as he was struggling to source it. Surveyor A states he told Mr X it was a precaution in case his neighbour’s removed the tree.
- Surveyor A had a video call with surveyor B on 20 October. Surveyor B was on site following an inspection request from Mr X. Mr X again asked if he needed Claymaster. Surveyor A said Mr X only needed it for the corner closest to the sycamore tree. He saw no changes to ground conditions that would alter his earlier decision.
- Surveyor B states when he assessed the footings on 20 October Mr X asked why he needed Claymaster. Surveyor B repeated what surveyor A told Mr X. Mr X told surveyor B he did not want to install Claymaster, but he had not told surveyor A this. Surveyor B therefore called surveyor A. Surveyor A explained to Mr X why he wanted him to use Claymaster. Mr X agreed he would do so if that was what surveyor A wanted.
- Surveyor C states he spoke to Mr X after his trench foundations collapsed and told him to install shuttering before it got worse. Mr X asked about the need to install Claymaster as requested by surveyor A. Surveyor C said surveyor A is a senior surveyor and he would not change his decision as he had no evidence to show the decision was wrong.
- Surveyor C also states, regardless of the need for Claymaster, the collapse of the foundation trench will increase the cost and complexity of the work. This should have been properly assessed by Mr X before doing the work.
- Surveyor C assessed the soil, the depth of the foundations, and the location of the neighbour’s tree on 26 October. He did not consider Mr X needed Claymaster. However, he stated that does not mean surveyor A’s decision was wrong, as no testing had been carried out on the soil and the decisions were a professional opinion only. Surveyor C denied stating to Mr X that surveyor A was in error. Surveyor C said he told Mr X he could complain if he wished but did not say he would deal with it personally.
- Surveyor C states he told Mr X despite the foundations being wet, it was ok to pour concrete. The foundations would not dry out for several weeks and the risk of the situation getting worse outweighed the risk of pouring the concrete. Mr X insisted on contacting his engineer. Surveyor C states the engineer gave the same advice.
- Surveyor C said he did not discuss piling or ground beams with Mr X. Mr X decided to carry out this expensive work himself, without approval from the council.
- The engineer states he usually defers to building control. He did not give definite instructions about pouring concrete, but he cautioned against it. He would not say whether it was suitable to pour concrete without a sample of the soil.
- After seeing pictures of the waterlogged trench, he considered Mr X’s choices were to wait for it to dry out or continue with a different foundation. In this case he considered piles to be most suitable.
- When surveyor A assessed the start of Mr X’s building work he believed Mr and Mrs X were in dispute about their neighbour’s tree, and it could be removed soon. Mrs X denies being in a dispute with his neighbours about the tree, but that was surveyor A’s impression.
- Where a building control officer identifies a potential issue with proposed building work, we would expect them to bring this to the applicant’s attention and offer suitable advice. After assessing ground conditions, surveyor A considered Mr X should use Claymaster. This is a matter of professional judgement and is a recommendation surveyor A was entitled to make.
- The Ombudsman does not find fault where an officer gives a professional opinion after considering the relevant evidence.
- Surveyor C later made his own on-site assessment and considered Mr X did not need Claymaster. It is not unusual for two professionals to give different opinions. As surveyor C expressed in his statement, no testing of the soil had been done and the fact his opinion was different did not mean surveyor A was wrong. I cannot, on balance, take one professional opinion over the other. There is therefore no clear evidence for me to say whether Mr X needed Claymaster.
- However, on the evidence seen, surveyor A was not merely giving Mr X advice he could ignore. It was an instruction. He did not say Mr X was free to continue at his own risk. Surveyor A expected Mr X to install Claymaster and expressed this internally to colleagues. If surveyor A had intended to provide advice, and Mr X was free to decide, he did not make that clear. In fact, surveyor A would not change his decision despite requests from Mr X.
- Because surveyor A could not be certain of precise ground conditions, or whether the neighbours would remove their tree in future, I would have expected him to be more cautious in his comments.
- In its complaint response, the Council confirmed its surveyors did not investigate or analyse the soil. Their judgements were their own subjective views.
- The Council’s requirement that Mr and Mrs X install Claymaster, despite not knowing precise grounds conditions or whether a neighbouring tree would be removed, amounts to fault.
- The Council recognised surveyor A’s actions led to a delay. However, I am mindful the opinions of surveyor A and C were only 10 days apart, and Mr X completed foundation work on 6 November. That is not a significant delay. It was the bad weather and lack of support in the foundations which caused the problems and added costs, not the relatively short delay. I appreciate the delay had a knock-on effect for the delivery of Mr X’s concrete, but that was outside the Council’s control.
- The Council also could not control the weather in the intervening period and is not responsible for the work Mr X carried out. There are no certainties in construction work, and it was Mr X’s responsibility to ensure the work, in so far as possible, was protected from the weather.
- The Council said Mr and Mrs X installed piling and reinforcement bars on the advice of their engineer, not its surveyors. That is only partially correct.
- The Council was unaware of plans to use piling bars until after Mr X carried out the work. However, while the evidence suggests the Council considered it was safe for Mr X to pour concrete without added structural reinforcement, surveyor C was aware of Mr X’s plans to use reinforcing bars.
- However, unlike with Claymaster, the Council was not insisting Mr X use reinforcement bars and did not ask him or require him to install them. He did so for his own peace of mind.
- I can understand Mrs X’s view that they would not have needed to do extra work if surveyor A had not instructed them to use Claymaster. However, I do not consider there is clear evidence for me to say that instruction caused the later events.
- For the reasons outlined above, I do not consider the Council is liable for the extra work which was subsequently carried out.
- The Council recognised Claymaster was probably not needed. In future it should tell officers to be more careful, and clearer, about the steps applicants may take where precise ground conditions are unknown.
- I do consider the Council’s fault caused Mr and Mrs X undue distress and uncertainty about the outcome. That is their injustice, and the Council should offer a remedy.
- Within four weeks of my final decision, the Council agreed to:
- Apologise to Mr and Mrs X for instructing them to use Claymaster and not making clear what their options were.
- Pay Mr and Mrs X £300 to recognise the distress and uncertainty its fault caused.
- Remind building control officers the importance of providing clear advice and evidence-based instructions to applicants.
- I have completed my investigation. I found there was fault causing injustice which the Council agreed to remedy.
Investigator's decision on behalf of the Ombudsman