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Retaining wall concerns and the stance of a local authority

Report ID: cross189

Published: Newsletter No 19 - July 2010

Source: CROSS

Report Content

A reporter was asked by a Client to assess a retaining wall built on their boundary by a neighbour who had erected a new dwelling. Of reinforced concrete block work construction the wall is about 2.75m high at its highest point and retained the Client’s land. On the other side of the wall is an access road to the neighbour’s new dwelling. From a visual inspection the wall appeared sound. However, a review of the calculations and a typical section, gave serious concern for its strength.. From the layout of the calculations it was reasonably obvious that they could not apply to the structure in question. The reporter contacted the Engineer named on the calculations to ask him  if he could deal with the Section 167 issues. It was then established that the Engineer had not designed the retaining wall or overseen its construction. He did not know that his calculations had been put into an Agreement for the Works. The calculations were for a garage wall with concrete floor over (to support part of the new dwelling) and part ground retaining.

The reporter’s firm then informed their Client that the retaining wall was substantially under strength, and therefore an unsafe structure requiring action to make it safe as soon as possible. The firm took the view that they had done their duty in so far as they had advised of a severe health and safety risk and recommended a course of rectification. However, they believed that they should also inform the relevant authority and consequently wrote to the Local Authority. They suggested that an Engineer’s calculations had been fraudulently used and issued, giving cause for concern as to the integrity of the construction as a whole. The firm’s recommendation was that the LA takes action under Section 77 of the Building Act. The LA's reply was, paraphrased: --our officer has visited the site and upon inspection there was no visible change in the walls condition (from a previous visit) and therefore we are taking no action at this time.

They ask, through CROSS, what more can the firm do about this clear and present danger?

Comments

It is very difficult when professional advice on safety is not taken up and there have been, as previously reported, a number of recent collapses of boundary walls and retaining walls sometimes with fatal results (eg Newsletter No 15 July 2009 – Deadly Retaining Wall) and the matter is important. Boundary walls may however not come within the jurisdiction of Building Control unless they are deemed to be dangerous structures and this is the subject of the following comment published on the CROSS website.

 “Report 166 (Newsletter No 17 assets/uploaded/fck/File/CROSS Newsletter 17[1].pdf) concerning the collapse of a freestanding boundary wall misses the main problem with these walls, which is that they are not covered by Building Regulations (unless they form part of a building), so their construction is unregulated. Therefore local authority building control officers have no authority to do anything about the design or condition of such a wall unless someone reports it as a dangerous structure (by which time it is usually too late).”

A further step can be taken by explaining again these concerns in writing (possibly in a registered letter) to the head of Building Control with copies to the Highways Agency and HSE.  The local authority has powers under the Building Act to take action and below is a paragraph taken from a typical council web site:

“Local Authorities are given discretionary powers to deal with Dangerous Structures by Sections 77 and 78 of the Building Act 1984.

The Council will take action where deemed appropriate to ensure public safety, either to require the owner to make the structure safe, or in an emergency, to take action then recover costs from the owner.  Emergency action might be to remove the danger, perhaps by demolition or partial demolition, or to provide barriers around the dangerous structure. (http://www.hastings.gov.uk/dangerous_structures/)”

If there is still no satisfactory response then as a citizen, the reporter can complain about the action, or inaction, of a local authority to the Local Authority Ombudsman who has powers to investigate (http://www.lgo.org.uk/). Mention made in the letter to the Local Authority that recourse might be made to the Ombudsman could have a salutary effect. It should be noted that the authority can only take legal action when the building or structure is in such a condition as to be dangerous, they can not take action on the basis that the structure is likely to become dangerous in the future. If the authority shares the concern of the engineer they could write to the owner of the wall advising them of the authority’s concern and advising that if the condition of the wall deteriorates the authority may instigate proceedings against them as owners’

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