Document 23 Correspondence between Officer 5 and Officer 6

Document 23 Correspondence between Officer 5 and Officer 6 From: Officer 5 (ESNR-Planning) Sent: 04 September 2020 10:28 To: Officer 6 (ESNR-Planning) Subject: FW: Complaint

complaint-form_0-2

bd copy.odt <Doc 1a>>

Rheoliad Adeiladu | Building Regulations Is-adran Gynllunio | Planning Directorate Llywodraeth Cymru | Welsh Government

From: Officer 1 (PSG - HR Strategy, OD and Engagement) On Behalf Of Complaints - Cwynion Sent: 02 September 2020 09:37 To: Officer 5 (ESNR-Planning) Cc: Complaints - Cwynion Subject: FW: Complaint

Morning Officer 5, The Complaints Advice Team have received the attached in relation to buildings safety. Can you confirm if the issues raised would fall within your remit please? Regards, Officer 1 Llywodraeth Cymru / Welsh Government Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.

From: XXXXXX Sent: 28 August 2020 15:08 To: Complaints - Cwynion Subject: Complaint

Dear Sir/Madam

I attach my completed complaint form dated 28 August 2020.

XXXXXX

Document 24 Correspondence between Officer 7 and Officer 6 From: Officer 7 (ESNR-Planning) Sent: 01 October 2020 12:51 To: Officer 6 (ESNR-Planning) Subject: RE: Complaint

Hi Officer 6, Spoke to complaints. Because I’ve used the form he submitted and it’s dated in July (rather than the covering email), she’s happy for that to be used. He’ll no doubt come back on some technicality though. Ta, Officer 7. From: Officer 5 (ESNR-Planning) Sent: 02 September 2020 09:46 To: Complaints - Cwynion Cc: Officer 6 (ESNR-Planning) Subject: RE: Complaint

Yes this is for us, something that has been the subject of lengthy correspondence. Could you advise of the process for dealing with complaints Officer 5



Morning Officer 5,

The Complaints Advice Team have received the attached in relation to buildings safety. Can you confirm if the issues raised would fall within your remit please? Regards, Officer 1 Llywodraeth Cymru / Welsh Government Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.


Dear Sir/Madam


XXXXXX

Document 25

Correspondence between Officer 5 and Officer 13

From: Officer 13 (ESNR - Planning) Sent: 16 September 2020 11:22 To: Officer 5 (ESNR-Planning) Cc: Officer 6 (ESNR-Planning) Subject: Complaint XXXXXX

Hi Officer 5 I have attached all the ishare links to this email relating to all the references in the word document provided. I wasn’t sure who you wanted me to send them on to, Officer 1 or Officer 7? Regards Officer 13

From: Officer 5 (ESNR-Planning) Sent: 15 September 2020 16:57 To: Officer 13 (ESNR - Planning) Subject: FW: Complaint

Officer 13, Can you construct an email with ishare links to each correspondence file in Officer 6’s attached list including the last one I added as a link I’ll call to explain <<Doc 8a>> Thanks Officer 5


From: Officer 5 (ESNR-Planning) Sent: 10 September 2020 15:32 To: Complaints - Cwynion

Cc: Officer 3 (ESNR-Planning) Subject: RE: Complaint

Officer 1, Please find attached summary of the correspondence since 2013 culminating in the complaint recently received from XXXXXX. I have included at the end a link to the previous final correspondence and reply. We are very clear the issue is his disagreement with ,initially, the view taken by the Carmarthen Council and subsequently the Welsh Government. The complaint procedure states The complaints procedure does not allow us to consider complaints about:

a decision which has not involved maladministration – in other words, the

procedure cannot be used to complain about a decision just because the

complainant does not agree with it;

All correspondence was responded within set timescales. I would appreciate your thoughts Officer 5



Morning Officer 5, The Complaints Advice Team have received the attached in relation to buildings safety. Can you confirm if the issues raised would fall within your remit please? Regards, Officer 1 Llywodraeth Cymru / Welsh Government

Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.


Dear Sir/Madam


XXXXXX

Document 26 Correspondence between Officer 3 and Officer 7 From: Officer 3 (ESNR-Planning) Sent: 01 October 2020 11:14 To: Officer 7 (ESNR-Planning) Subject: RE: CU-04214 - XXXXXX

Thanks Officer 7 Happy with the letter and conclusions of the review. Thanks again for taking this on. Officer 3

From: Officer 7 (ESNR-Planning) Sent: 30 September 2020 15:50 To: Officer 3 (ESNR-Planning) Subject: CU-04214 - XXXXXX

Hi Officer 3, I’ve been reviewing XXXXXX complaint and now have a finalised response. It’s already been seen by Officer 5 and the Complaints Unit, who are both content with it.. Do you want to clear it before it goes, or are you happy for me to send it off? The deadline for issuing it is Friday. Ta, Officer 7.

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Complaint CU-04214 - Mr B Durham - Response.docx <<Doc 26a>> Officer 7 Pennaeth Cydsynio Cenedlaethol / Head of National Consenting Y Gyfarwyddiaeth Cynllunio / Planning Directorate Llywodraeth Cymru / Welsh Government

Doc 26a XXXXXX

Ein Cyf/Our ref: CU-04214 Dyddiad/Date: 1 October 2020

Dear XXXXXX I refer to your complaint dated 31 July 2020 regarding the Welsh Government’s alleged failure to answer questions about the administration of its powers to control building safety in Wales. Your complaint has been considered under the formal review process detailed in the Welsh Government's Complaints policy and procedure, which is available by post on request or on our website at: https://gov.wales/how-make-complaint-about-welsh-government My role as formal reviewer at the final stage of the Welsh Government’s complaints procedure is to consider what, if any, further actions can be taken to resolve matters, which is appropriate and proportionate to your complaint. Each of the ten points of your complaint will be addressed in turn: 1. The Welsh Government has given information which is clearly wrong to my

MS about how the Building Regulations apply to building work on existing buildings, and it is avoiding putting this obvious error right by not answering questions which clearly explain the error.

This complaint relates to the alleged giving of advice which is misleading or inadequate. I understand a significant amount of correspondence was made between a number of MSs and the relevant Welsh Government Minister, as well as the First Minister, over the period between July 2013 and March 2019, all of which has been considered as part of this complaint review. A response was provided to the MS who requested information on each occasion, and each response has been consistent. To summarise, initial correspondence clearly and correctly set out the responsibilities of the Welsh Ministers and of the local authorities in relation to Building Regulations. Furthermore, correspondence, notably CS/00590/15 and LG/00608/17, sets out the status of Approved Documents, as well as setting out the relevant legislation in relation to building work and changes of use. While providing this information, the Welsh Government has not, and is unable to provide, a detailed legal interpretation of the relevant legislation, however, has

https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fgov.wales%2Fhow-make-complaint-about-welsh-government&data=02%7C01%7CLewis.Thomas19%40gov.wales%7C179be2aef81b4108b54d08d86548055d%7Ca2cc36c592804ae78887d06dab89216b%7C0%7C0%7C637370707279378107&sdata=yRHwFHnHZQsnqbVmPfKXYRgERiO1%2BgWBRT0ogBs1tjs%3D&reserved=0

provided what it accepts to be the correct legal position. Ultimately, matters of legal interpretation are for the Courts. In reviewing the relevant correspondence, the Welsh Government has not provided, nor wilfully sought to provide, misleading or inadequate advice. This complaint is not upheld. 2. I am asking for an answer which admits to an error which is obvious to

anyone, or if the government really does not believe I am right, that it agrees to ask the Building Regulations Advisory Committee for Wales for advice, in the interest of public safety, openness and accountability. To refused [sic.] to do this can only mean that it is not willing to admit to a mistake.

This complaint relates to the alleged giving of advice which is misleading or inadequate, and is partially linked to complaint 1. The response to complaint 1 applies in this instance. Correspondence numbered CS/00209/16 and FM/00219/16 sets out the remit of both Local Authorities and the Building Regulations Advisory Committee for Wales. This explanation determined the function of the Committee is to advise the Welsh Ministers on the exercise of their powers to make building regulations, and not to determine whether building work in particular instances contravenes regulations. I consider the Welsh Government has not given advice which is misleading or inadequate and the complaint is not upheld. 3. It is mistakenly telling my MS that an engineer’s structural appraisal under

paragraph 1.10 Existing buildings in Approved Document A is an alternative way of complying with the Part A structural safety legal requirement to safely support the dead, imposed and wind loads.

This complaint relates to the alleged giving of advice which is misleading or inadequate, and is partially linked to complaint 1. The response to complaint 1 applies in this instance. Furthermore, correspondence numbered LG/00608/17 explains Part A of Schedule 1 to the Building Regulations contains the requirements for ‘structure’. Building work is to be carried out so it complies with Part A of Schedule 1. A Local Authority’s duty under section 91 of the Building Act 1984 is to consider whether the ‘building work’ (including on a material change of use) complies with the requirements contained in Part A. Part A does not state how to achieve compliance nor how compliance is to be demonstrated. This is a matter for the Local Authority. Furthermore, the correspondence also clarifies the role of Approved Documents made under section 6 of the Building Act 1984 to provide practical guidance with respect to the requirements of any provision of Building Regulations. I do not consider the Welsh Government gave misleading or inadequate advice or willingly gave erroneous advice. The complaint is not upheld. 4. It is saying that an engineer’s structural appraisal allows the government’s

Part A building construction BS code safety standards in Building Regulations Approved Document A to be circumvented and the Part A legal requirement to safely support the dead, imposed and wind loads to be avoided, when this is not true, because it contravenes the Building Act 1984.

5. Building Regulations Part A structural safety approval cannot be given to

building construction which does not meet the government’s Part A safety standards in Approved Document A because the Building Act 1984 makes them mandatory. Making the safety standards in the Approved Documents for the various legal requirements in the Building Regulations (e.g., Part A structural and Part B fire safety) legally mandatory is how the Welsh Government controls the safety of buildings in Wales, they cannot be overridden by councils and engineers.

Complaints 4 and 5 are dealt with jointly and relate to the alleged giving of advice which is misleading or inadequate, and are partially linked to complaints 1 and 3. The responses to those complaints apply in this instance. No correspondence which has been provided to date directly states standards set out in Approved Document A can be circumvented and Part A of the Building Regulations can be avoided with the submission of a structural appraisal. Correspondence numbered LG/00608/17, however, contains an extract from Approved Document A, which clarifies the role of Approved Documents, which “are intended to provide guidance for some of the more common building situations. However, there may well be alternative ways of achieving compliance with the requirements. Thus, there is no obligation to adopt any particular solution contained in an Approved Document if you prefer to meet the relevant requirement in some other way”. CS/00590/15 and LG/00608/17 clarifies the role of Approved Documents made under section 6 of the Building Act 1984 in relation to Building Regulations. LG/00608/17 further clarifies it is the function of Local Authorities to enforce Building Regulations in their areas. Although the guidance in the Approved Documents will be taken into account by Local Authorities when considering compliance, the Local Authorities’ duty is to consider whether the work complies with the requirements of the Building Regulations. I therefore do not consider the advice the Welsh Government gave to be misleading or inadequate. The complaint is not upheld. 6. I have repeatedly explained to the Welsh Government that it is completely

impossible for what it is telling my MS to be right, but every reply to my letters, which clearly explain this error, avoids giving an answer by repeatedly saying there is no new information. This is grossly insulting, my MS and I would not be writing if an adequate reply had already been given.

This complaint relates to the alleged failure to give an appropriate response. Earlier responses by Ministers to correspondence from MSs on this matter provide considered and appropriate responses to the issues which the constituent has raised. It is acknowledged additional and later responses refer to previous correspondence and does not add further explanation or elaboration. While this is the case I consider this to be reasonable as the Welsh Government set out its view clearly and notably in correspondence numbered CS/00590/15 and LG/00608/17. The Welsh Government could not practically add further value or information to those responses.

The complaint states the Welsh Government has responded stating there is no information. Responses from the Welsh Government, however, have stated no new information has been provided which would change or alter any previously stated views. Further elaboration has also been made in responses numbered FM/0777/18 and JJ/06091/19 stating the interpretation of the law generally and in relation to the legal effect of Approved Documents, the Building Regulations and Section 7 of the Building Act 1984, are ultimately matters for the court. Until the court is called upon to determine the matter, the Welsh Government’s view remains as explained in the previous correspondence referred to above. While it is acknowledged the responses made to these matters were concise, and not to the satisfaction of the complainant, the Welsh Government is not able to elaborate further from its previously stated position. Accordingly, the complaint is not upheld. 7. The purpose of paragraph 1.10 Existing buildings is for an engineer to check

that an existing building is safe for a change of use controlled by Building Regulations 5 and 6, i.e., that it complies with the safety standards in Approved Document A for its new use and with the Part A structural safety legal requirement to safely support the dead, imposed and wind loads. It has nothing to do with building work to alter an existing building, because this is controlled by Building Regulations 3 and 4. There is no reduced Part A safety standard for building work to existing buildings, as the government is telling my MS.

8. It is alternative ways of constructing buildings to those in Approved Document

A that are allowed and not alternative standards of safety as decided by engineers, as the government is telling my MS. Alternative building materials and methods to those tested to the BS codes safety standards in Approved Document A are allowed, but they must also be tested and be equally safe and comply with the Part A structural safety legal requirement (as stated in the Approved Document). The regulations do not allow alternative lower standards of construction safety to be approved by councils and engineers, this breaches the Building Act 1984.

Complaints 7 and 8 are considered jointly and relate to the alleged giving of advice which is misleading or inadequate, and are partially linked to complaints 1, 3, 4 and 5. The responses to those complaints apply in this instance. No correspondence has been provided to date which either directly states or implies the Welsh Government promotes a reduced safety standard to that set out in Part A of the Building Regulations. Furthermore, correspondence numbered LG/00608/17 states “Part 2 of the Building Regulations sets out requirements for the ‘control of building work’. The meaning of ‘building work’ is set out in regulation 3(1) and includes at regulation 3(1)(d) ‘work required by regulation 6 (requirements relating to material change of use)’. Regulation 4 makes provision regarding ‘requirements relating to building work’ and regulation 6 makes provision regarding the ‘requirements in relation to material change of use’. In general, regulations 4 and 6 require ‘building work’ (including on a material change of use) to be carried out so it

complies with the applicable requirements contained in Schedule 1 to the Building Regulations, see regulations 4(1)(a) and 6(1)”, which clarifies the relationship between ‘building work’ and ‘material change of use’. I consider the Welsh Government has not given advice which is misleading or inadequate and the complaint is not upheld. 9. The Welsh Government cannot possibly fail to understand that it is wrong to

say that the regulations allow councils and engineers to approve building construction which does not comply with its own approved BS code safety standards in Approved Document A, there would be no point in government approving and publishing them if they could.

10. To avoid being told again by the Welsh Government that the courts would

have to decide if I am right about the Building Act 1984 making the government’s approved building safety standards in the Approved Documents legally mandatory for complying with the Building Regulations building safety legal requirements (which cannot be right), will the government please answer this question. If the safety standards in the Approved Documents are not mandatory, what is the purpose of the government publishing them, and who does it believe has the legal authority to decide safety standards for buildings in Wales when the Building Act 1984 instructs the courts to use the government’s safety standards?

Complaints 9 and 10 are considered jointly and relate to the alleged giving of advice which is misleading or inadequate, and is partially linked to complaints 1, 3, 4, 5, 7 and 8. The response to those complaints apply in this instance. No correspondence has been provided to date which either directly states or implies the Welsh Government allows Local Authorities to approve building work which does not comply with Part A of the Building Regulations. Correspondence numbered LG/00608/17 sets out the role of Approved Documents made under section 6 of the Building Act 1984 are intended to provide guidance for some of the more common building situations, the relevant extract is contained in my response to complaints 4 and 5. Furthermore, in my response to complaints 2 and 6, I make reference to correspondence numbered LG/00608/17 which set out the role of Local Authorities and the Courts in relation to compliance with Building Regulations. I consider the Welsh Government has not given advice which is misleading or inadequate and the complaints are not upheld. To summarise, the 10 complaints addressed above largely appear to relate to a difference of views in how the Building Regulations are implemented, rather than any maladministration or failure to provide an adequate response. For this reason, I do not uphold your complaints. However, the enforcement of Building Regulations is ultimately a matter for the Local Authority and determination of interpretation is a matter for the Courts. Should you require advice as to the interpretation of relevant legislation, which is relevant to your dispute or more generally, you may wish to seek your own independent legal advice.

If you are dissatisfied with my response to your complaint or if you feel that your complaint has not been properly considered, I should also remind you of your option to refer the matter to the Public Services Ombudsman for Wales who is independent of all government bodies, and can be contacted at: Public Services Ombudsman for Wales 1 Ffordd yr Hen Gae Pencoed Bridgend CF35 5LJ Telephone: 0300 7900203 E-mail: [email protected] Web: www.ombudsman-wales.org.uk Yours sincerely, Planning Directorate

mailto:[email protected]

http://www.ombudsman-wales.org.uk/

Document 27 Correspondence between Officer 1, XXXXXX and Officer 7 From: Officer 1 (PSG - HR Strategy, OD and Engagement) On Behalf Of Complaints - Cwynion Sent: 01 October 2020 12:49 To: Officer 7 (ESNR-Planning) Cc: Officer 6 (ESNR-Planning); Officer 5 (ESNR-Planning); Complaints - Cwynion Subject: RE: Your complaint - CU-04214

Thank you Officer 7, Please see attached the response issued. Regards,

Your complaint -

CU-04214.msg <<Doc 27a>> Officer 1 Llywodraeth Cymru / Welsh Government Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.

From: Officer 7 (ESNR-Planning) Sent: 01 October 2020 12:02 To: Complaints - Cwynion Cc: Officer 6 (ESNR-Planning); Officer 5 (ESNR-Planning) Subject: FW: Your complaint - CU-04214

Hi Officer 1, Please see attached my response to the complaint from Mr Durham.. If you could send it from the complaints mailbox, I’d be very grateful. Let me know if you need anything further from me. Thank you,

Officer 7.

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Complaint CU-04214 - Mr B Durham - Response.pdf

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Complaint CU-04214 - Mr B Durham - Response.docx <<Doc 26a>> <<Doc 26a>>

From: Officer 1 (PSG - HR Strategy, OD and Engagement) On Behalf Of Complaints - Cwynion Sent: 24 September 2020 09:21 To: XXXXXX Cc: Complaints - Cwynion Subject: Your complaint - CU-04214

Dear XXXXXX, Further to my email to you on the 03/09/20, as you are aware, your complaint is being considered in accordance with the Welsh Government’s Complaints Policy. Unfortunately the investigation is taking a little longer than anticipated. Please accept my apologies, in advance for this, but I am sure you will appreciate it is important for the lead official to gain a full understanding of your complaint, to ensure a thorough investigation, before responding. I will ensure you are kept informed of any progress. Yours Sincerely, Officer 1 Llywodraeth Cymru / Welsh Government Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.

Doc 27a

From: Officer 1 (PSG - HR Strategy, OD and Engagement) On Behalf Of Complaints - Cwynion Sent: 01 October 2020 12:47 To: XXXXXX

Cc: Complaints - Cwynion <> Subject: Your complaint - CU-04214

Dear XXXXXX, Please find attached a response to your complaint. <<Doc 26a>> Yours Sincerely, Officer 1 Llywodraeth Cymru / Welsh Government Y Tîm Cynghori ar Gwynion / Complaints Advice Team Grŵp yr Ysgrifennydd Parhaol / Permanent Secretary’s Group Yr Is-adran Ymgysylltu a Datblygu Sefydliadol / Organisational Development and Engagement Division Parc Cathays / Cathays Park Caerdydd / Cardiff CF10 3NQ.