The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to ensure a developer built a satisfactory retaining structure to the rear of his property. We have not found the Council to be at fault. The Council investigated his concerns and decided it was a private matter between Mr X and the developer.
The complaint
Mr X complains the Council failed to ensure a developer erected an effective retaining structure to the rear of his property.
He says this has affected his outlook and caused significant distress and frustration over a prolonged period of time.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) 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 spoke to Mr X and reviewed his complaint and the Council’s response. Mr X and the Council had the opportunity to comment on my draft decision.
What I found
The Building Regulations 2010 cover the construction and extension of buildings. The purpose of the regulations is to ensure public safety.
Developers are obliged to comply with building regulations and work may be inspected by councils or through contracts with private inspectors Building regulations contain guidance and indicators of best practice, but enforcement action is discretionary and so it is up to the judgement of Council Building Control Officers whether and how to enforce the regulations. The government advises councils that enforcement powers should only be used if a breach causes or is likely to cause significant harm or risk of harm.
What happened Several years ago, the Council granted planning permission for a housing development to the rear of Mr X’s property. This involved raising the height of the land on Mr X’s boundary line that required a retaining structure.
The developer erected a wooden fence that Mr X says was totally inadequate. The developer agreed to replace this with a higher fence using gravel boards to hold back the weight of the soil. Mr X says this was still not fit for purpose and did not comply with building control regulations.
In 2019, a Council officer visited the site and decided it fell outside of its building control remit because: the Council was not the appointed building control service for the development; the fence was not a structure that was covered by building regulations; and the fence was not dangerous or pose a risk to the public.
Mr X complained to the developer. The developer agreed to replace the fence but failed to do so. In late 2021, Mr X again asked the Council to intervene. The Council told Mr X this was a private dispute and not a matter for the Council for the reasons explained in 2019.
Dissatisfied, Mr X made a formal complaint. He said the Council failed in its duty of care towards him and should have ensured neighbouring properties were not adversely affected by the development.
His complaint was not upheld. Mr X complained to the Ombudsman.
Analysis The Council investigated Mr X’s concerns about the fence in 2019 and decided it fell outside of its building control remit. This was a decision the Council was entitled to reach and I cannot criticise it.
The developer undertaking building work is primarily responsible for the standard of work including any impact on neighbouring properties.
In this case the developer accepted responsibility and agreed to take remedial action. The fact it has not yet done so is not due to Council fault. This is a private matter between Mr X and the developer. It is not the Council’s responsibility to enforce this agreement. For this reason, there is no achievable worthwhile outcome for Mr X through further investigation by the Ombudsman.
Final decision
I have not found the Council to be at fault and have completed my investigation.
Investigator's decision on behalf of the Ombudsman