Essex County Council (19 016 789)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 04 Dec 2020

The Ombudsman's final decision:

Summary: The Council failed to engage adequately with local people about emerging flood management works that Mr X says will cause disruption and a loss of green space near his home. The lack of early public engagement is unlikely to have affected the Council’s flood management decision. However, the Council agreed to apologise to Mr X for denying him an early opportunity to comment on the emerging proposals. The Council also agreed to review its approach to early public engagement for flood management works.

The complaint

  1. Mr X complains about the Council’s handling of a flood defence scheme near his home because:
  • the modelling and assumptions used to design the works are flawed, which in turn affects the costs assessment for the scheme; and
  • it failed to consult with local people when designing the works, which is contrary to national and the Council’s own guidance.
  1. Mr X says the works will badly affect his local amenities as they result in the loss of mature trees and public green space. And, during construction, there will be disturbance and noise from lorries using residential roads.
  2. Mr X wants the Council to apologise for failing to consult local people. Mr X also wants the works stopped until completion of an independent review into their modelling, design, and cost benefits. (And the Council to take suitable action in response to the findings of that review, which may need changes to the works.)

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
  2. 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)
  3. 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

  1. I have:
  • considered Mr X’s written complaint and supporting papers;
  • offered to talk to Mr X about the complaint;
  • asked for and considered the Council’s comments and supporting papers about the complaint;
  • shared the Council’s comments and supporting papers with Mr X; and
  • shared a draft of this statement with Mr X and the Council and considered their responses before reaching a final decision.

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What I found

Background

  1. The Council is a ‘lead local flood authority’ (LLFA) and so has responsibilities, with other bodies, for managing flood risks in Essex. The Council’s responsibilities include preparing and applying a flood risk strategy and carrying out works to manage flood risks. The Council has a 2018 flood risk strategy, which replaced an earlier 2013 strategy.
  2. The Council has prepared a surface water management plan (SWMP) for several of its towns, for example, Braintree, Witham, Maldon, and Rochford. A SWMP identifies local flood risks and helps decide where and what schemes could take place to reduce those risks. A SWMP exists for the place where Mr X lives (‘the Plan’). The Plan identified the area around Mr X’s home as a ‘critical drainage area’, which meant it had a higher risk of surface water flooding.
  3. The Plan identified ways of managing flood risk in each critical drainage area including which was potentially the preferred way to address risk. The Plan explained further work was necessary, including a cost to benefit analysis, before carrying out any flood management scheme. The Plan also recommended the Council and local district council prepare and apply a communication strategy to raise residents’ awareness of flood risks.
  4. This complaint concerns the Council’s proposal to carry out a flood management scheme near Mr X’s home (‘the Scheme’). The Scheme differs from proposals included in the Plan for the critical drainage area in which Mr X lives.
  5. The Scheme emerged over many years during which the Council:
  • met with other bodies with responsibilities and an interest in managing flood risks to discuss possible works;
  • arranged an open event for the public about possible flood management work; and
  • modelled possible works to identify any value for money flood management measures.
  1. The modelling and cost to benefit assessments led the Council to identify flood management works near Mr X’s home. The Council designed outline proposals, which it presented to meetings of both its and the relevant District Council’s councillors. The Council then presented the proposals to a meeting of the local Town Council. Local people, including Mr X were present at the Town Council meeting. The Council says local people raised concerns about the proposals.
  2. The Council also received comments from its planning officers raising similar concerns to those at the Town Council meeting. The Council’s planning officers said they would not support the proposals. They also “encouraged" their colleagues to engage with local people about flood work proposals in line with the Statement of Community Involvement (SCI). An SCI sets out how a planning authority will involve local people when preparing planning policies and deciding planning applications. The SCI referred to by the Council’s planning officers says, ‘all potential planning applicants are encouraged to engage with the local community before submitting a planning application’. The SCI gives details of how to engage but, at pre application stage, the suggestions do not expressly cover applications for ‘minor’ development. (The works near Mr X’s home are, for planning purposes, ‘minor’ development.) At application stage, the SCI ‘encouraged public events for all proposals that generated greater public interest than expected at pre application stage’.
  3. The Council attended further meetings with local councils and councillors. Mr X was again among the local people present at the relevant Town Council meeting. These meetings led the Council to agree to look into carrying out similar proposals on nearby land. This meant the Council had to ‘remodel’ the proposals. The Council says this modelling showed significantly reduced benefits for the new proposals when compared to the original proposals.
  4. Over the next eighteen months, the Council says it considered what extra ‘benefit to cost’ measures it could take with the new proposals to address flood risk. During this time, Mr X was seeking information from the Council about local flood risk proposals. Mr X also says he later became aware of a rumour about the possible use of green space near his home for flood risk work.
  5. The Council arrived at the Scheme as its proposal for managing flood risk in the critical drainage area that included Mr X’s home. The Council discussed the Scheme with the local District and Town Councils. The Council also said it would hold an open event about the Scheme for local people.
  6. The Scheme needed planning permission before work could start on site. The Council is a local planning authority (LPA). The law provides for the Council to apply to its Planning Committee, for planning permission for its own development. So, the Council, as LLFA, applied to itself, as an LPA, for planning permission for the Scheme. The application referred to ‘community engagement’ that had taken place over the years leading to the Scheme comprising:
  • discussions with councillors, the local District Council, and other bodies; and
  • discussions with the local Town Council and attending local people that led to changes to the proposals and their location.

The application also said the Council planned to hold a community event about the Scheme.

  1. While considering the application, the Council, as LLFA, held an open event for local people to view plans and ask questions about the Scheme. The Council, as LLFA, prepared a statement setting out several questions raised by local people at the event and giving its response to them. On receiving a copy of the statement, the Council, as LPA, publicised it to give local people an opportunity to respond to the LLFA’s further comments. Before that, the Council, as LPA, had twice publicised the planning application, on each occasion giving people opportunities to comment on the Scheme. Mr X was one of many local people that did comment. Mr X also started writing to the Council, as LLFA, seeking information about the Scheme and raising various points and concerns.
  2. The Council’s Planning Committee considered a report assessing the Scheme against planning policies. The report included a summary of peoples’ comments about the Scheme and addressed the planning issues raised in those comments. The Council decided to grant planning permission for the Scheme.
  3. Meanwhile, Mr X continued to write to the Council as LLFA and later made a complaint. Briefly, Mr X’s main concerns were the Council’s:
  • failure to secure the early and effective involvement of local people in developing proposals to manage local flood risk; and
  • serious errors and misleading information in the modelling, and the resulting financial appraisal, for the Scheme.

Consideration

Community involvement

  1. Mr X referred to national Government policy and industry guidance supporting effective community involvement in flood risk schemes. Mr X also pointed to the Council’s 2013 flood risk strategy and the Plan (see paragraphs 8 to 10) as encouraging community involvement. Mr X said combined these documents showed it was good practice to involve residents when dealing with local flood risks. Mr X said he was not aware of the early public event held by the Council (see second bullet point to paragraph 12). He also said discussions at two Town Council meetings did not represent ‘public involvement’. Mr X said holding an open event after making the Scheme planning application was not early and effective public engagement. To support his concerns, Mr X surveyed local people. The survey found, while some people were aware of the Scheme for over a year, most had known about it for up to three months.
  2. The Council agreed that engagement with local people in the early stages of scheme development was appropriate. In this case, it said the industry guidance Mr X referred to did not apply to the Scheme, but it had engaged with interested bodies and local people. The Council also said it had correctly publicised the Scheme planning application. It accepted delay in holding the open event after making the planning application but provided evidence it took account of peoples’ comments made after the event in deciding the application.
  3. Evidence exists of some public involvement with the Council’s emerging flood risk proposals. For example, the Council provided evidence it publicised an early open event within the critical drainage area (see second bullet point to paragraph 12). I have seen no information about attendance at or comments from this event, although I recognise it took place several years ago. Mr X’s survey also provides evidence of some longer standing local knowledge. And Mr X accepts proposals were ‘extensively discussed’ at the Town Council meetings he, and other local people, attended (see paragraphs 13 and 15). However, I agree with Mr X that public consultation is different to engaging with and at meetings of town and district councils.
  4. Here, aside from the early open event, there is no evidence of other public engagement about the local flood risk proposals. This is particularly disappointing considering the Council’s own pre application planning advice ‘encouraged’ such engagement (see paragraph 14). And, after issuing that advice, the Council spent about 18 months remodelling its proposals and changing their location to produce the Scheme. There is no evidence the Council used this time to engage generally and widely with local people about the emerging Scheme, including its proposed main location.
  5. The Council may see the 18 months review leading to the Scheme as not changing the substantive flood management proposal. Nor significantly changing the location for the main Scheme works. And yet, as a resident, it is possible to view the changes as significant and likely to affect more local people than those concerned about the original proposal. Overall, it was reasonably foreseeable that local people would be concerned about the Scheme and its main location. And this proved to be the case as the Council received many comments and objections after making the Scheme planning application.
  6. I have read the Council’s summaries of people’s comments about the Scheme planning application. If there had been early involvement with local people, the Council may have allayed many understandable concerns raised in those comments. And early and effective engagement would have provided a more meaningful opportunity for local people to comment on the then emerging Scheme. Engagement after making a planning application has limitations. When deciding a planning application, LPAs can take account of ‘material planning considerations’. So, peoples’ comments and objections made other than on planning and land use grounds will not be relevant to the LPA’s decision.
  7. I have considered how the Council dealt with the Scheme planning application. I recognise Mr X raised concerns about publicity for the application and the timing of the community event. And yet, an open event did take place before the Council, as LPA, decided the application. And, the evidence shows the Council, as LPA, publicised the application three times, including after the community event. I therefore find no fault in how the Council handled the Scheme planning application. However, to meet acceptable administrative standards the Council ought to have engaged with the wider public about the emerging Scheme in the 18 months before making the planning application. So, I find fault here.
  8. However, the Council, as LLFA, is ultimately responsible for making decisions about local flood management schemes. The evidence does not suggest the Council is likely to have reached a different decision and identified another scheme if wider pre planning application public engagement had taken place. Mr X, and other local people, would therefore find themselves in the same position with Council having planning permission (and Environment Agency approval) for the Scheme. I therefore find the injustice to Mr X caused by the fault I have identified is the loss of an added opportunity to make representations to the Council about the Scheme before it made the planning application.

Scheme issues

  1. Mr X has many detailed concerns about the Scheme including that it uses “deeply flawed” hydraulic modelling resulting in unrealistic anticipated flood levels. Mr X points to the Council making unreasonable assumptions and not carrying out physical checks. Mr X also challenges the independence of the Environment Agency ‘flood maps’ used by the Council as they use the Council’s flawed modelling. Mr X says the Council’s information misled local District and Town Councils and their councillors into supporting the Scheme. Mr X also says the flawed modelling affects the resulting economic appraisal used to justify the Scheme costs. And, while accepting the proposals evolved, Mr X says the scale of the increased economic benefits of the Scheme are beyond “belief by any reasonable person”. Mr X also says the Council’s reason for discounting other proposals is “questionable”.
  2. The Council has replied to Mr X’s points both direct to him and through correspondence with his Member of Parliament. In brief, the Council says it acted in line with relevant Government and Environment Agency policy and guidance for preparing flood management schemes. It was not responsible for such policy and guidance. The Council accepted it shared modelling information with the Environment Agency but said this was not the sole data used by the Agency to prepare flood maps. The Council said it had carried out “extensive feasibility studies” to identify the Scheme. It recognised what Mr X said about managing flood risk at its source and providing works ‘upstream’. However, specific circumstances and site constraints led it to identify the Scheme as the best outcome.
  3. The Council denied using misleading information and told Mr X how earlier economic appraisals differed from that for the Scheme. The Council also confirmed it carried out the Scheme appraisal in line with guidance for proposed flood management work. The Council said it had followed standard practice in using a national database to assess the number of local properties that would benefit from the Scheme. And, it had given its reasons for not pursuing other local flood management works. The Council said the overall benefits of the Scheme set against its costs meant it was the preferred way of managing local flood risk.
  4. In responding to the Ombudsman, the Council explained its flood management schemes needed some external funding. It therefore had to show its schemes complied with Government policy guidance and Treasury rules. It also had to follow the ‘multi coloured manual’ for the economic appraisal of flood risk management schemes. Here, it had to send a formal ‘Business Case’ to the Environment Agency to demonstrate such compliance. The costs of the Scheme meant the Agency’s National Project Assurance Service (NPAS) had to audit its Business Case. The audit considers the strategic, economic, commercial, financial and management case for a proposal. Since Mr X’s complaint, the Council said it had responded to NPAS questions about the Scheme and the Environment Agency had now approved its Business Case. The Council said approval of its Business Case for the Scheme demonstrated it had followed relevant guidance and validated its modelling and economic appraisal.
  5. I recognise Mr X’s dissatisfaction with the Council’s responses to the points he raised about the Scheme including its modelling and costs to benefits appraisal. The differences between Mr X and the Council are not matters I may resolve. It is not for me to review the information used and applied by the Council in carrying out its flood risk role. Nor may I arbitrate on the parties differing views about local flood risks or assumptions made by the Council in modelling the Scheme. My role is to consider whether the Council approached its decision making correctly. If it has, it will not have acted with ‘fault’. And, the Council, its professional officers, and agents, may then use their judgement to apply, weigh and balance flood related information to reach a decision.
  6. Here, the Council has provided evidence it based its approach to identifying flood management measures on relevant Government and Environment Agency guidance. I therefore have no grounds to find fault in how it acted in identifying the Scheme as its preferred means to address local flood risk. The Council has also now secured approval from the Environment Agency to its Business Case for the Scheme. So, a national public body with flood risk responsibilities that is independent of the Council, has been able to consider, and approve, work carried out by the Council in identifying the Scheme to address local flood risk.

Agreed action

  1. I have found fault causing injustice. To address such fault and put right the resulting injustice to Mr X, the Council agreed:
  • (within 10 working days of this decision statement) to send Mr X a written apology for not providing him with an opportunity to comment on the Scheme before it applied for planning permission; and
  • (within three months of this decision statement) to review its procedure for community engagement on local flood management schemes at the pre planning application stage. The aim of the review being to ensure such engagement is part of the forward plan for a scheme and takes place in timely, effective, and proportionate manner.
  1. The Council also agreed to send the Ombudsman evidence it had complied with the recommendations at paragraph 36 within 10 workings day of completing each action.

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Final decision

  1. I completed my investigation, on the Council agreeing the recommendations at paragraphs 36 and 37, finding that while there was fault causing injustice to Mr X, it did not affect the Council’s flood management decision.

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Investigator's decision on behalf of the Ombudsman

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