Summary: We will not investigate this complaint that the Council has failed to take action against alleged Building Regulation contraventions at a property next to the complainant. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault by the Council, it has taken appropriate action in response to the complaint, and we could not achieve a worthwhile outcome for any damage caused by the neighbour’s works.

The complaint

1. The complainant, whom I refer to as Mr X, says his neighbour has carried out works which contravene the Building Regulations. In particular, he says:
• the boiler flue hangs over his boundary and discharges fumes into a bedroom window;
• the extension is not finished/rendered on one side so is not waterproof; and,
• the footings have not been completed so his garden is collapsing into the hole.

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The Ombudsman’s role and powers

2. 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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants, or
• the Council has already taken satisfactory action in response to the complaint.

(Local Government Act 1974, section 24A(6)& (7))

3. 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. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council. This included an explanation from the Council about why the boiler flue is deemed to be compliant with the Building Regulations.
5. I also considered our Assessment Code.

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My assessment

6. As part of its consideration of Mr X’s complaint, the Council’s Building Control officers undertook a further site visit. As a result, it accepted that Mr X had previously been wrongly advised that the flue, as originally installed, met Building Regulation requirements. The Council apologised for this error. However, the flue had since been modified, and the Council was now satisfied it was compliant as it had been directed upwards so the plume is not discharged towards the boundary. In addition, as the boiler is a high efficiency condensing boiler, the Council said any fumes discharged prior to the modification of the flue would not have been toxic or a risk to health.
7. I appreciate Mr X does not agree with the Council’s decision that the flue does not require further modification. But the Ombudsman does not provide a right of appeal against that decision. Rather, we consider whether there is evidence of procedural/administrative fault in the way such decisions are made. In this case, the Council conducted a further site visit, and reached a professional judgement on whether the flue was now compliant with the Building Regulations. It is therefore unlikely the Ombudsman would find the Council has acted with fault here. In addition, the Council’s apology was an appropriate way to address the error in its original advice to Mr X.
8. And if Mr X thinks any deficiencies with the render and footings of the extension have caused damage to his own property, then we would regard that as a private, civil matter between him and his neighbour. This is because case law has established the primary responsibility for building works rests with those that commission it and those that carry it out. It is not the Council’s role to protect neighbouring properties from damage caused by building works, and we could not say it is responsible for any damage. Therefore, we cannot achieve a worthwhile outcome in respect of this part of the complaint.
9. For the above reasons, and with reference to paragraph 2 above, the Ombudsman will not investigate the complaint.

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Final decision

10. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council, it has taken appropriate action in response to the complaint, and we could not achieve a worthwhile outcome for any damage caused by the neighbour’s works.

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Investigator's decision on behalf of the Ombudsman