Summary: The Council did not fail to ensure a development was completed in accordance with planning conditions relating to flood prevention.

The complaint

1. Mr B complains that the Council failed to ensure a developer properly complied with planning conditions for the development of a new housing estate. In particular, he says that the developer has not properly carried out landscaping or flood prevention works.
2. Mr B is complaining on behalf of the owners of 11 properties located on or near the development site.

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What I have investigated

3. I have investigated Mr B’s complaints about the flood prevention works. The last section of the statement explains why I have not investigated Mr B’s complaints about the landscaping.

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The Ombudsman’s role and powers

4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

5. If we are satisfied with a council’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)

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

The law and government guidance

7. Applications for outline planning permission seek to establish whether the scale and nature of a proposed development would be acceptable to the local planning authority, before a fully detailed proposal is put forward. This type of planning application allows fewer details about the proposal to be submitted. Once outline permission has been granted, the developer will need to ask for approval of the details (reserved matters) before work can start.
8. A Section 278 Agreement allows developers to enter into a legal agreement with the highways authority to make alterations or improvements to the public highway.
9. Councils should not take enforcement action just because there has been a breach of planning control. Government guidance says, "Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework, paragraph 58)

Overview

10. This complaint relates to the actions of East Hampshire District Council, which is the planning authority. We have not been asked to investigate a complaint about Hampshire County Council (HCC), the highways authority. In this statement, I have referred to East Hampshire District Council as ‘the Council’.
11. In October 2012, the Council granted outline planning permission for a development including 60 dwellings, a health care facility and access road. A condition required the development to be carried out in accordance with the approved plans, which included a drainage strategy plan and flood risk assessment. Another condition stated that development could not start until details of a surface water drainage system for the site had been submitted and approved by the Council.
12. The reserved matters application was approved in July 2013. A condition required the development to be carried out in accordance with the approved plans, which included a drainage strategy plan, drainage drawings and a landscaping plan.
13. After completion of the development, Mr B contacted the Council because he did not consider the developer had complied with the planning conditions relating to landscaping and flood prevention. In particular, he said:
• Trees have died because they were not planted correctly;
• Some areas which should have been turfed were seeded;
• The seeding was not carried out properly and was of a poor quality;
• Some planting has not been carried out;
• The planted area has not been kept weed free;
• The developer has failed to install some gabions;
• Some gabions are incorrectly located and not fit for purpose;
• The swale has not been constructed in accordance with the specification;
• The downstream defenders have not been inspected and are not being maintained;
• Repairs to a pipeline were not carried out;
• A redesigned pipeline inlet grill was not fitted;
• Action to improve the flow of water has not been carried out; and
• The developer did not enter into an agreement with HCC to cover maintenance costs.
14. The Council told Mr B that it was happy that the drainage around the site had been built and implemented in accordance with the approved plans. It explained that the developer had entered into a section 278 agreement with HCC to allow it to carry out works to the public highway and HCC had confirmed that the section 278 works had been completed to its satisfaction.
15. The Council investigated Mr B’s concerns about the landscaping and as a result, some of the trees have been replaced. It is now satisfied that the landscaping has been completed in accordance with the approved landscaping plan. Mr B disputes this. He also says the wrong trees were used, the specification was ignored, and more trees have since died.
16. HCC has adopted an area of land at the front of the site, which includes the verge and swale. It is now responsible for the maintenance of that land. The property owners pay a service charge to a managing agent to maintain the remainder of the site.

Analysis

17. I have investigated Mr B’s complaint that the Council failed to ensure the development was completed in accordance with the conditions relating to flood prevention.

Swale

18. A swale is a shallow drainage channel with gentle side slopes in the ground where water running off a site can collect and soak away. Construction of the swale was included in the section 278 agreement. Mr B considers it has not been constructed in accordance with the specification.
19. HCC has confirmed that the profile of the swale does not match the specification detailed in the flood report. However, the swale was constructed to its satisfaction and in accordance with the section 278 agreement.
20. I do not consider the Council was wrong to rely on HCC's view that the works had been completed satisfactorily. The responsibility for the maintenance of the swale now lies with HCC.

Downstream Defenders

21. The drainage solution specified in the flood report and drainage strategy plan includes downstream defenders which are designed to remove pollutants from stormwater. Mr B believes the defenders have not been inspected and are not being maintained.
22. The Council has not been given any reason to believe the defenders may not have been installed properly, in accordance with the drainage plans, and so it has not been necessary for the Council to carry out an inspection of the defenders.
23. The defenders are positioned within the site, on land which has not been offered to HCC for adoption. The flood report shows that it was always intended for a management company to manage some drainage elements of the development. Neither HCC nor the Council are responsible for ensuring the defenders are properly maintained. If property owners have any concerns about maintenance of the defenders, they should contact the site managing agents.

Remedial works

24. The flood risk assessment report says that the existing ditch was subject to localised flooding because of the size of a pipe and poor maintenance. It also said that a grill needed more regular maintenance or to be redesigned. The flood report and drainage strategy plan approved at the outline stage both state that the developer would enter into an agreement with HCC to cover the cost of the remedial works.
25. These works were not included in the section 278 agreement between the developer and HCC and Mr B says they have not been carried out. He considers the Council should take enforcement action to make the developer carry out the remedial works detailed in the flood report.
26. The Council says that the works outlined within the flood report were indicative works that were outlined as in need of repair and of work. It says that enforcement action could not be taken to ensure the indicative works were completed by the developer because of the way the report was worded, without start dates or timescales.
27. A different drainage strategy plan was submitted with the reserved matters application. It did not state that the developer would enter into an agreement with HCC to cover the cost of the remedial works. This was noted by the Council’s Drainage Officer in his comments on the application. On the balance of probabilities, I consider it likely that the Council was aware that the proposal no longer included the developer covering the cost of the remedial works, and that it did not consider these works were necessary to make the development acceptable. The Council should have explained this to Mr B when he made his complaint, rather than just referring him to HCC. But in any event, I do not consider it likely that there is a breach of planning control, and so the Council cannot take enforcement action.
28. HCC is responsible for maintaining the highway drain which was identified as in need of repair. Property owners may wish to contact HCC if they are concerned that it has not carried out necessary repairs or maintenance.

Maintenance costs

29. The flood report says that the developer will enter into an agreement with HCC to provide commuted sums to cover maintenance costs. Mr B does not believe it did so.
30. I do not consider the Council is responsible for ensuring the developer contributes to HCC’s maintenance costs. I have found no evidence of fault here.

Final decision

31. I have completed my investigation and do not uphold the complaint. There was no fault by the Council.

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Parts of the complaint that I did not investigate

32. I have not investigated Mr B’s complaint that the developer failed to carry out landscaping in accordance with the approved landscaping scheme. The Council is satisfied that the landscaping has been completed in accordance with the approved landscaping plans. I do not consider further investigation of this aspect of Mr B’s complaint would achieve the outcome Mr B seeks, for further landscaping works to be carried out.
33. This is because, even if the Council accepted that some works had not been carried out in accordance with the landscaping plan, I do not consider the Council would take enforcement action. Government advice is that such enforcement action, which can be lengthy and costly, should only be embarked upon where there is material harm to the amenity of the area, and where the as-built outcome would not be granted planning consent. The Council clearly considers the landscaping to be acceptable, and so it would not be expedient to take enforcement action. I also do not consider the alleged failure to carry out the landscaping in accordance with the approved scheme has caused sufficient injustice to justify the Ombudsman’s involvement.
34. I have also not investigated Mr B’s complaints that:
• The developer has failed to install some gabions;
• Some gabions are incorrectly located and not fit for purpose;
• There are an excessive number of galvanised railings on the site which are industrial in appearance;
• There was an exposed high voltage cable; and
• The bricks used to construct a boundary wall are unsuitable.
35. I do not consider Mr B’s complaints about the gabions have caused sufficient injustice to justify the Ombudsman’s involvement.
36. The Council has told Mr B that the railings were installed for health and safety reasons, which it is entitled to do. I do not consider further investigation in relation to the galvanised railings would likely find evidence of fault.
37. The cable is dead and has now been cut and buried. I do not consider further investigation could achieve any worthwhile outcome.
38. The planning permission did not specify the type of boundary wall bricks which should be used. I therefore do not consider further investigation would find evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman