Summary: Mrs B complains the Environment Agency (“EA”) did not carry out a proper risk assessment when responding to a planning application for flood defence works and issuing an environmental permit. Mrs B says her house is downstream of the works. Her area has experienced increased flooding since the works, and she is concerned about the risk to her home. The Ombudsman will not investigate the EA as a statutory consultee to the planning application as this is not within our jurisdiction. We will discontinue the investigation into the decision to issue an environmental permit as it is unlikely we could find fault or achieve a different outcome for Mrs B.

The complaint

1. The complainant, who I refer to as Mrs B, complains the EA did not carry out a proper risk assessment before approving flood defence works to a river. She says the EA relied on an inaccurate risk assessment produced by a private consultant. Mrs B says she lives lower down on the river and is concerned about the increased risk of flooding to her home because of the works upstream. She says her house was recently surrounded by flood water and flooding has become worse since the works took place.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or

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

3. We cannot question whether an authority’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)
4. If we are satisfied with an authority’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

5. I considered the information provided by Mrs B. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.

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What I found

Legislation and Guidance

6. Planning permission is required for the development of land. Planning law prescribes circumstances where councils are required to consult specified bodies prior to a decision being made on an application for planning permission. These specific bodies are referred to as ‘statutory consultees’. The statutory consultees must provide a substantive response to the council within 21 days.
7. The EA is a statutory consultee where the development involves works withing 20 metres of a main river, or works other than a minor development in certain flood risk zones.
8. Government guidance says delays in the statutory consultation phase can be avoided by early engagement between developers, statutory consultees and councils at the pre-application phase. It says it is important for councils to work closely with statutory consultees.
9. The Ombudsman’s Guidance on Jurisdiction says:
• ‘Other Environment Agency functions are within the jurisdiction of the Parliamentary and Health Service Ombudsman (PHSO). This includes complaints about the Environment Agency's actions as a statutory planning consultee in relation to flood defence matters’

Background

10. Mrs B lives close to a river. In recent years the river has flooded at various points and several flood defence schemes have either been proposed or completed. One of those schemes is in an urban area upstream of Mrs B (“the Scheme”).
11. In 2016 the council for the local area (“the Council”) approved planning permission for the Scheme. Before it approved permission, the Council commissioned a private consultant to complete a risk assessment for the Scheme. The risk assessment is dated 2014.
12. As part of the planning application procedure the Council consulted the relevant statutory consultees, including the EA. The EA responded to the consultation by saying that it did not have any objections to the Scheme. It also issued an environmental permit for the Scheme.
13. Mrs B says the EA should not have approved the Scheme without a proper risk assessment. She says the 2014 risk assessment only considered a 1 in 100 year event when it should have considered flood events in excess of this and properly taken into account the likely impact of climate change.
14. The EA says the Council’s flood risk assessment for the Scheme considered a 1 in 100 year flood, a 1 in 100 year flood plus an allowance for climate change, and a 1 in 200 year flood event.
15. Mrs B says the EA should not approve works that cause an increased risk of flooding to properties downstream. She says the Scheme has increased the risk of flooding to her home. She says there are other proposed flood defence works on the same river that may also increase the risk of flooding downstream. Mrs B says the EA should not approve any further flood defence works until it has completed a proper risk assessment for the impact of all of the works combined.

Findings

16. I will not investigate the EA’s response as a statutory consultee to the planning application as this is not within our jurisdiction. Any complaint of this nature needs to be made to the PHSO.
17. I will discontinue the investigation into the EA’s decision to issue an environmental permit. This is because it is unlikely, I could find fault or achieve a different outcome.
18. The permit was issued in 2016 and the works are now complete. Therefore, I cannot achieve an outcome where any permit is repealed, and the works removed. Mrs B wants to see the EA change its approach to issuing permits going forward. However, the reason she says the EA should not have issued a permit in this case is that it did not complete a proper risk assessment.
19. The EA was involved in the pre-application procedure for the planning application. It based its decision that the works were acceptable in planning terms and to issue an environmental permit, on a risk assessment commissioned by the Council. It was the EA’s decision as to whether it considered the available risk assessment was sufficient. I would not be able to question the merits of that decision. The risk assessment was completed by a firm with professional experience in this area and it would not be my place to say it should have considered flood events in excess of a 100yr event, or that the way it took into account climate change was flawed.
20. There is no legal duty on the EA to have already performed a larger risk assessment taking into account all proposed future works. It is for the EA to decide what information it needs to reach an informed decision in each case.

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Final decision

21. I will not investigate the EA as a statutory consultee as this is not within our jurisdiction. I will discontinue the investigation into the decision to issue an environmental permit as it is unlikely, we could find fault or achieve a different outcome for Mrs B.

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Investigator's decision on behalf of the Ombudsman