The Ombudsman's final decision
Summary: X complained about the service they received from the Council’s building inspector after X applied for building regulations approval for their development. We did not investigate this complaint further because we were unlikely to provide a remedy X wants or reach a different outcome.
The complaint
The person that complained to us will be referred to as X.
X complained about a Council building inspector who did not identify and inform X about a breach of building regulations after making an initial inspection.
X said the failure to warn of the breach has caused significant financial losses, including: the cost of major remedial work necessary to make the property comply with building regulations; and the property now has no resale value because the Council will not issue a building regulation completion certificate.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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(i), as amended)
How I considered this complaint
I read the complaint and discussed it with X. I read the Council’s response to the complaint.
I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.
What I found
Building Control and Building Regulations Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building inspectors to carry out this work.
There are two ways a building owner can get building regulations approval. These are: Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
Building notice application. The owner or their agent informs the council or approved inspector of their intention to begin building work. The council’s inspector or approved inspector will visit the site at various stages of the work to check compliance with building regulations.
There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner.
Owners of buildings may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.
There are rights of appeal against building regulation decisions. The first step is to ask for a ‘determination’ if approval is refused or the decision is unfair. If the building control body says work does not comply with building regulations, the developer can appeal to the secretary of state. Details of building regulations appeals can be found at www.gov.uk .
What happened X is a developer. X applied for building regulations approval to the Council and its inspector issued conditional approval of the plans. The condition related to electrical work, and this is not in dispute.
Several weeks after X had carried out work inside the property, a different Council inspector said there was a breach of planning control because of the open layout of the property. X said this layout was the same as when the property was constructed.
The Council refused to issue a completion certificate to show the work complied with building regulations.
X disagrees with the Council’s judgement and says if the original inspector had identified the problem and warned them about the breach of regulations, they would have resolved the problem at an earlier stage, avoiding expensive remedial works and other significant losses. X complained to the Council.
In its response to X’s complaint, the Council said: because the existing layout was not compliant with building regulations at the time the building was constructed, the completion certificate could not be issued now; it accepted it had taken too long to respond and that it could have better explained historical context relating to the open plan layout and building regulations; a conditional approval is not evidence of compliance with the regulations, and that decision must be made after review of all documents and site inspections; it is the developer’s/owner’s responsibility to ensure compliance with building regulations.
X remained unhappy so complained to the Ombudsman.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice that we can remedy?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation that we have already started.
I should not investigate this complaint further and my reasons are as follows.
X wants significant sums to compensate for lack of advice on building regulations following the first inspection. The Council has explained its reasons why it considers it is not liable for X’s losses. We are not a court, and disputes about legal liability for large losses are best decided by courts.
Neither can we comment on the judgements of inspectors in the absence of some administrative fault in the process by which they make their decisions. There are appeal rights that can be used to challenge these judgements.
The Council has accepted some fault in the way it has acted and has apologised for delay in dealing with X’s complaint and the adequacy of its explanation of some of the issues. Further investigation by me into these issues is unlikely to lead to a different outcome or the remedy X wants.
Final decision
Subject to further comments I may receive, I intend to end my investigation as it is unlikely to result in the remedy X wants or a different outcome.
Investigator's decision on behalf of the Ombudsman