Summary: Mrs C complained the Council failed to properly investigate and take appropriate action in response to her reports of breaches of planning control in relation to drainage which resulted in flooding at her property. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains the Council failed to properly investigate and take appropriate action in response to her reports of breaches of planning control in relation to drainage at a residential development site next to her property.
2. Mrs C says because of the Council’s fault her property has suffered from repeated flooding causing damage to her kitchen and utility areas which has put her to unnecessary costs and upset. Mrs C also says she has had to arrange her own works to divert water from the site away from her property at an approximate cost of £8,000 although the water still causes waterlogging to her driveway and garden.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I read the papers provided by Mrs C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990 (the Act). Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations. A full permission will grant permission for all aspects of a proposal, though usually permission is granted subject to planning conditions.
8. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority.
9. A breach of planning control is defined in section 171A of the Act as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

10. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
11. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
12. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

Key events

13. The amount of information provided to the Ombudsman by the Council was considerable. In this decision, I have not referred to every element of that information, but I have not ignored its significance. My statement sets out what I consider to be the information material to the complaint as made or necessary for context.
14. The Council granted planning permission subject to conditions for a residential development near Mrs C’s property in 2019. Condition 12 of this permission required the approved scheme for how additional surface water run-off from the site would be avoided during construction to be operating to the LPA’s satisfaction before the commencement of any works which would lead to increased surface water run-off from the site during the construction phase. This condition was discharged with others in June 2020.
15. The approved scheme under the above condition required the construction of a silt fence along one boundary. This was designed to trap silt and hold surface water which would then be pumped off-site.
16. The Council subsequently received an application to vary the conditions of the approved plans and approved this in early 2021. The decision notice which supersedes the above permission set out the following conditions relating to drainage:

• “10 The detailed design and associated management and maintenance plan of the surface water drainage for the site shall be implemented in accordance with the details approved under [reference to conditions discharged above]. The approved drainage system shall be implemented in accordance with the approved detailed design, prior to the use of the building commencing.
• 11 The detailed assessment to demonstrate that the proposed destination for surface water accords with the drainage hierarchy as set out in paragraph 80 of the planning practice guidance shall be implemented in accordance with the details approved under [reference to conditions discharged above]
• 12 The details indicating how additional surface water run-off from the site will be avoided during the construction phase shall be implemented in accordance with the details approved under [reference to conditions discharged above]
• 13 The foul drainage works shall be implemented in full in accordance with drawing [specified] prior to the first occupation of the dwellings and retained as such thereafter.”

17. Mrs C contacted the Council in December 2020 to say the developer was pumping water off the site but this was returning to her land causing flooding or ice in cold weather. Mrs C suggested the developer was in breach of condition 12 of the planning permission. The Council contacted the developer and provided a response to Mrs C.
18. Mrs C contacted the Council towards the end of January 2021 to say water from underground streams had been disturbed by the developer and was now causing flooding to her property. Mrs C also stated that despite the developer constantly pumping water it was still coming through a retaining wall and was being pumped to a neighbouring field without the landowner’s permission. Mrs C also raised concern the position of an attenuation tank would allow water to flood the road and her land.
19. The Council provided a detailed response to Mrs C at the end of January. The Council confirmed it had contacted the developer about the drainage matters she had raised but noted some matters concerning drainage easement rights were private matters between the relevant landowners.
20. The Council subsequently received further information from the developer and visited the site. The Council noted the intended silt fence had been replaced with a new retaining wall on the development side of an existing retaining wall which served as the boundary to Mrs C’s land. The developer accepted there was a build up of water against this wall in heavy and continuous rainfall but this was being pumped away from Mrs C’s land with the permission of the relevant landowner.

21. The Council provided a detailed update to Mrs C in early February. The Council was satisfied the developer was taking reasonable steps during the construction phase considering the challenging conditions from prolonged periods of rain and snow melt.
22. Mrs C raised concerns about the condition of a retaining wall in March and the Council provided a detailed reply about the drainage works on site and that the retaining wall had been inspected and some blocks of the top course had been dislodged and would be repaired. The Council also passed on an offer by the developer to inspect the existing boundary wall from Mrs C’s side with her permission. The Council noted any boundary wall issues would be a private matter between Mrs C and the developer.
23. Mrs C did not contact the Council again until February 2022 to say the retaining wall was under threat of collapse and a neighbouring property had been flooded. The Council contacted the developer and noted a building control surveyor had visited the site and discussed the developer’s proposals about the wall. Mrs C reported further potential breaches of planning control to the Council towards the end of February and noted some plots were now occupied. The Council contacted the developer in early March. The Council provided an update to Mrs C towards the end of March. The Council completed a site meeting with the developer towards the end of April and also met with Mrs C.
24. The Council wrote to Mrs C in early May with the findings of the site visit. This confirmed the position of a particular plot was in accordance with the approved plans and so there was no breach of planning control. The Council explained the new developer that had taken control of the site was proposing works to the retaining wall but these related to building control matters rather than planning. The Council also noted the approved temporary run off management measures under Condition 12 which included a bund and silt fencing were not in place because the progress of the development meant works were taking place in those areas. However, surface water was being collected in the attenuation tank rather than in a bund and silt fencing. It was also noted that condition 10 required a detailed design and management of surface water drainage to be approved. The drainage scheme showed surface water being diverted into an attenuation tank and out of the site into existing infrastructure. There was no surface water drainage ditch or sewer/culvert along the eastern boundary although the developer recognised there may be a requirement to install some kind of drain along this boundary and this would likely be designed in conjunction with the specification for the works to the retaining wall. The Council made clear there was no requirement to install such a drain and it had not been considered necessary at the design and approval stage. The Council noted the condition stated the approved drainage system should be implemented in accordance with the approved design ‘prior to the use of the building’ commencing. The Council’s view was that any requirement that drainage was implemented in full before the occupation of any building was unreasonable and provided its reasons for that view. It was the Council’s position the condition could not be enforced to stop the occupation of any house before the whole scheme was implemented. The Council would ensure the scheme was implemented as approved in full when the development was completed. The Council also made clear it was not attributing liability for any flooding issues to the developer (or previous developer) which would ultimately be a private civil matter. The Council emphasised its role was concerned with whether there was a breach of planning control.
25. Mrs C made further reports to the Council during May and June about various matters including drainage issues. The Council contacted the County Council as Lead Local Flood Authority (LLFA) and developer during June and July and provided an update to Mrs C in August. The Council explained there was some delay in arranging a further visit to observe the site following a period of heavy and sustained rain to check how the surface water scheme was operating due to the ongoing dry weather conditions.
26. The Council visited the site and met with Mrs C and also obtained further information from the LLFA in early September after a period of rainfall. The Council provided an update to Mrs C in mid-September. The Council set out there was no evidence the surface water drainage scheme had not been carried out as approved. The Council was satisfied it had been installed and was available for the properties that had been occupied. The Council considered any breach of planning control here was a technical one relating to the timing of occupation. The Council’s interpretation of the relevant condition was the drainage scheme relating to each plot must be implemented before that plot/unit was occupied. The Council had reviewed the approved surface water drainage scheme with the LLFA and there was no requirement to install infrastructure on the eastern boundary and so there were no grounds to take enforcement action. The developer had provided amended drawings for the retaining wall which included a surface water drainage ditch/pipe along this boundary which required discussion between the relevant parties. The Council would require an application for the amendments from the developer. The Council would consider what, if any, enforcement action was appropriate if no such application was made. The Council confirmed the temporary run off management scheme during construction was not fully implemented as approved as a silt capture fence was not provided. The Council noted the primary purpose of the fence was filter out silt rather than prevent the passage of water and the retaining wall had served to intercept both silt and water although it was accepted there was evidence water had seeped through the wall possibly due to structural defects which were due to be repaired. The scheme could not now be implemented as approved because of the works taking place in the relevant area and the investigation and repair work needed to the retaining wall which was considered key. The Council had required the developer to pump down trench water and to provide a temporary trench to keep the base of the existing wall dry/exposed and reduce the risk of water collecting against the retaining wall. The Council confirmed it would consider whether it was expedient to take enforcement action if the interim measures were not completed in a reasonable timescale. The Council noted Mrs C’s view that the measures would not improve the situation as she considered an existing ground water pathway had been interrupted as a result of the works to install the approved surface water attenuation tank. The Council could not confirm if this was the case as the ground water pathways were not identified or surveyed when the planning application was approved and the approved drainage scheme did not address groundwater. This meant there was no breach of planning control in relation to this issue. It was also noted it was proposed to tank the retaining wall during repair work which in combination with the other measures was considered would remedy any escape of water onto Mrs C’s land. The Council noted the planning permission did not authorise any damage to Mrs C’s property and explained she would need to seek her own independent legal advice about any damage to her property from flooding. The Council also provided a response to various other potential breaches of planning control on site not relating to drainage.
27. The developer completed some works at the end of September and the Council provided an update to Mrs C in early October. The developer provided proposals to the Council about drainage and the retaining wall in md-October and the LLFA also provided information following site investigations. The Council provided a further update to Mrs C in November. The Council also visited the site after a period of heavy rain and wrote to Mrs C.
28. The Council received applications in January 2023 for non-material amendments to the planning permission and has written to Mrs C about these.

My consideration

29. It may be helpful to say something about planning enforcement. Councils have no duty to monitor development. They are dependent upon members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. If a breach of planning control is found, the Council’s next duty is to take a view on whether it needs to do something about it or not. Councils have power to enforce but they have no duty to do so. When deciding whether enforcement action would be appropriate, the test in simple terms is whether, in the interests of public amenity, enforcement action would be expedient. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.
30. Based on the information provided, I consider the Council has properly responded to Mrs C’s reports of breaches of planning control relating to drainage at the site. The Council visited the site, met with Mrs C and considered her concerns and the information she provided, and sought information and advice from the LLFA. The Council has provided cogent reasons for its view there is not a breach of planning control in relation to some issues and why it did not propose to take formal action in relation to the temporary run off management scheme not being fully implemented. These are decisions the Council is entitled to make. I have seen no evidence of fault in the way the Council reached these decisions and there are no grounds for me to question them.

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Final decision

31. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman