Summary: We will not investigate Mr X’s complaint about the Environment Agency deciding not to take enforcement action against a flood defence development near his property. There is not enough evidence of fault in the Agency’s discretionary decision not to enforce to justify an investigation. Even if there were fault, there is not enough evidence the decision causes Mr X such significant personal injustice to warrant an investigation.

The complaint

1. Mr X lives in a property near a flood defence development, granted permission by the Local Planning Authority (LPA) several years ago. The scheme involves flood banks near Mr X’s property. The Environment Agency (EA) was a consultee in the planning process and issued a Flood Defence Consent to the developer.
2. Mr X complains the EA has failed to enforce against the applicant for not building the flood banks in compliance with the consent.
3. Mr X says there is an increased risk of flooding to his property from the development as built over that of the permitted design. He wants the EA to ensure the flood banks are completed to the consented levels.

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The Ombudsman’s role and powers

4. 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
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

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

5. 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)

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How I considered this complaint

6. I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. The EA and the LPA agree the flood banks as built by the developer do not comply with the planning permission or the consent. The EA has discretionary enforcement powers to pursue compliance. The EA has no duty to enforce every identified consent breach. It is for the EA to consider whether it should use its enforcement powers, based on the facts and circumstances in each case.
8. In response to the concerns raised about the flood banks as built, the EA gathered information from the LPA and the developer and consulted its enforcement and sanctions policy. The EA’s officers noted the LPA is seeking compliance from the developer with the relevant conditions placed on the planning permission relating to the design of the flood banks, and that the developer is cooperating. On applying the EA policy to the information, they took the view that for it to enforce against the developer for the consent breach would not be an appropriate or proportionate approach while the LPA was pursuing the same issue through the planning system. The EA decided not to enforce at this time, which was an option available for it to take. The EA has indicated it will continue to support the LPA during its planning process as the relevant consultee on flood matters.
9. We could only go behind an EA decision if there is fault in the decision-making process which, but for that fault, would have resulted in a different outcome. There is not enough evidence of fault in the EA’s process, nor in its decision not to enforce, to warrant us investigating. I realise Mr X disagrees with the EA’s decision. But it is not fault for a body within our jurisdiction to properly make a decision with which someone disagrees.
10. Even if there were fault in the EA’s decision not to enforce now, there is insufficient evidence of it causing Mr X a significant personal injustice to justify investigating. There is not enough evidence the flood banks as built have created a flood risk for Mr X which is worse than the situation prior to the development. I recognise Mr X is concerned about flooding if the banks are not amended in line with the consent and planning permission. The law says we can investigate on the basis that there has been a significant injustice caused; it does not allow us to investigate based on injustice‑causing events, such as floods, which someone is concerned might happen.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault by the EA in the process it followed to make its discretionary decision not to use its enforcement powers to warrant us investigating; and
• even if there were fault, there is not enough evidence the decision has caused Mr X a significant personal injustice to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman