Summary: We will not investigate this complaint about planning permission and drainage because the complaint is late, without good reason to exercise discretion to investigate and it is reasonable to expect Mrs Y to go to court about the matter, which is better placed to consider the complaint.

The complaint

1. Mrs Y complained the Council granted planning permission for development next to her home despite concerns from the local conservation officer about the drainage in the area. Mrs Y says this has led to her property being flooded since the works were carried out.
2. She also says that various drainage methods, including gully drains were filled in, rather than being replaced by land drains, which causes water runoff, often from the road to cause flooding due to a lack of drainage.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information Mrs Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

8. The law says people should normally complain to us within 12 months of becoming aware of an issue. Complaints brought to the Ombudsman more than 12 months after someone becomes aware of something a council has done are considered late. We cannot investigate late complaints unless we decide there are good reasons.
9. Mrs Y raised objections to the planning application prior to the Council granting of planning permission in December 2020.
10. Mrs Y’s was aware of her reason to complain about the Council’s actions when the planning permission was granted in December 2020, more than 12 months ago. Consequently, her complaint is now late. We have discretion to disapply the rule outlined in paragraph four where we decide there are good reasons. Mrs Y has not provided any good reasons why she did not bring her complaint to us within 12 months of knowing about the matter. It is reasonable to expect her to have complained sooner. We will not investigate this complaint.
11. Mrs Y has also said that her property has suffered from flooding as a result of the works carried out. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. We are not able to decide liability or award damages, either in relation to a claim against the Council or another other third party.
12. Consequently, any claim for damages, such as costs for repairs or for remedial works, which Mrs Y considers the Council or any third party to be responsible for, are matters more appropriately dealt with by the courts, or relevant insurer, who can decide such legal claims.
13. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service and in a case such as this, Mrs Y’s home insurance may cover some legal costs. Also, reasonable adjustments can be made for access to the court service if necessary. It is therefore reasonable for Mrs Y to be expected to use her right to go to court about this matter.

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Final decision

14. We will not investigate Mrs Y’s complaint because the complaint is late, without good reason to exercise discretion to investigate and it is reasonable to expect Mrs Y to go to court about the matter, which is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman