Summary: There was fault by the Council in how it responded when a developer failed to implement an approved drainage strategy. There were shortcomings in how it kept the complainant informed and a lack of evidence that it kept its decision not to take enforcement action under review. This caused the complainant uncertainty and distress. There was no fault in how the Council decided to approve variations and the new drainage scheme. The Council has agreed to my proposed remedy.

The complaint

1. Mrs K complains about how the Council dealt with planning matters at a development near her home. In particular, she says the Council:
• failed to take enforcement action when a developer altered the drainage network without Land Drainage Consent (LDC) and breached a planning condition that the approved drainage strategy must be in place before the units were occupied;
• The Council misled her and other residents that it did not know a ditch had been infilled;
• failed to keep her informed or respond to her contact in good time; and
• did not consider the adequacy of the most recent drainage strategy when it approved the variation of planning permissions.
2. Mrs K says her home was flooded and they had to spend two weeks living in wet conditions, and it took a further nine months to return her home to a liveable condition. Mrs K says she has suffered the distress not only because of the flood itself but the worry that it will happen again.

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What I have and have not investigated

3. This complaint is against South Norfolk District Council which is the local planning authority. The District Council is not responsible for granting LDC. This lies with the Local Lead Flood Authority, which in this case is the County Council. I have investigated Mrs K’s complaint against the County Council separately.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 considered the information provided by Mrs K and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken the comments of both parties into account before issuing my final decision.

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What I found

The law and guidance

7. 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.
8. 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.
9. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
10. The impact development might have on land drainage can be a material planning consideration. If land drainage is an issue in planning matters, we would expect to see evidence to show how the Council has dealt with this.
11. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. 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.

What happened

12. The Council granted a developer a series of planning permissions to build several residential units on land close to Mrs K’s home. The land is low lying. The planning permission was subject to a planning condition requiring the developer to implement the approved drainage strategy before the development is occupied so as to minimise the risk of flooding. The developer needed to apply to the Lead Local Flood Authority (the Flood Authority) for LDC before starting the work.
13. The developer started work without the required LDC. This included raising the ground levels, infilling ditches and installing inadequate culverts. Mrs K says that as a result of the development, surface water could not drain via the usual ditch network and Christmas 2020, her house flooded. The flood also affected three other properties and Mrs K says her family had to operate pumps through the night to stop the floodwater spreading.
14. Mrs K notified the Council. In March 2021, the Council met with the developer and inspected the site. It found the developer had only partially implemented a drainage strategy and this was not the approved scheme.
15. The Council decided that it would allow the developer to submit a retrospective application so that it could properly consider the new drainage scheme. Mrs K told the Council that the developer should have had consent from the Flood Authority to alter the course of the watercourse and that the developer had installed a flow pipe that was narrower than the Flood Authority’s standard requirements. Mrs K asked the Council to issue a notice to stop any more units being occupied before a suitable drainage strategy is agreed and implemented. The Council said that although the drainage scheme was supposed to be installed before any units were occupied, occupation itself would not have made a difference to the flooding.
16. In April, Mrs K asked the Council for an update and alerted it that the developer had now built a brick wall that covered an open drainage ditch. The Council advised that it had asked the developer for a timeframe in which it would submit a new drainage strategy for approval. Later that month, the Council told Mrs K it was having weekly meetings with the developer and the Flood Authority to agree a drainage strategy.
17. In May, the Flood Authority granted LDC but the Council still needed to approve the drainage scheme. Mrs K says that the Council failed to tell the Flood Authority that the plans submitted to it were wrong, and did not show that a ditch had been infilled. Mrs K says had the Council told the Flood Authority it would not have granted LDC. In June, the Council again told Mrs K that it had asked the developer for a timeframe, but that the scheme is likely to reflect the LDC. In July, Mrs K made a formal complaint.
18. In August, the Council confirmed that the developer had submitted an application to vary the planning permissions to allow for a different drainage scheme. In response to Mrs K’s complaint, it told her that it could not have known that the developer did not have the required LDC. It had considered serving a temporary stop notice requiring the developer to stop work until the situation was resolved. However, as the developer was involved in active discussion with the Council to agree a new scheme, it decided this was not necessary. The proposed drainage scheme would require fresh LDC and that the Flood Authority had not granted this.
19. The Flood Authority raised a number of concerns about the new scheme. In November, the Council told the developer that it would not refer the matter to its committee for a decision because the Flood Authority would be likely to refuse LDC and the committee would defer its decision until this was resolved. It had taken advice from the Flood Authority which had already made some recommendations to improve the proposed scheme. The Flood Authority accepted that some aspects of the scheme were acceptable, and that the flow would now be away from the properties, but it wanted the developer to open up the water course so that it could establish the size of pipe the developer had installed. This would require the developer to get consent from people who had already bought the new houses.
20. The developer amended the proposed scheme to include a lagoon to take excess water. Mrs K and other residents commissioned its own survey to show that the proposed drainage scheme would not protect their properties. It said that the capacity of the proposed system would be less than the original scheme and less that pre-development levels. The survey also said that the ditch network had also decreased and created a flood flow route across properties.
21. The Council consulted the Flood Authority again, and it advised that although the ditch network had decreased, this did not take into account a lagoon that would retain water. The Flood Authority said that this would improve the drainage on what was there before the development. The Flood Authority advised that the strategy is acceptable.
22. The Council’s planning report sets out the Flood Authority’s advice in detail and how it has addressed issues raised by the residents. The Council resolved to grant the variation to the planning permission and the new drainage scheme, subject to some further tests. Unfortunately, there has been a further delay in granting (and therefore implementing). This is because in the intervening time, new requirements were issues regarding the impact on soil nutrients in the area. I have not investigated the further delay as this happened after my investigation. However, it is not wrong for the Council to delay granting the planning permission until the new requirements are met.
23. The Council acknowledged that it had taken some time to approve an acceptable scheme and apologised to Mrs K for the distress and uncertainty this had caused. Mrs K wanted the Council to commission a review of the Flood Authority’s conclusions but it has refused to do this. It considered that the Flood Authority had sufficient information and is suitably qualified to advise the Council, and so it had no reason to doubt the advice received.

Was there fault by the Council?

24. Mrs K has not only experienced the distress of flooding, but also has lived with the understandable worry that it will happen again. However, the Council is not responsible for the developer failing to implement the originally approved drainage scheme. It could not have known that this had not been implemented before the flood happened. Based on my current understanding, it seems to me that the flood was not a result of fault by the Council.
25. However, the worry of flooding recurring is very real, and so any avoidable delay in ensuring that the developer implemented an adequate drainage strategy would impact on Mrs K.
26. It took around 18 months, from the start of 2021 to June 2022, for an approved drainage strategy to be put in place. I acknowledge that this was a complex situation and that the Council was engaged with the Flood Authority and the developer during that time. In the lead up to the applications being submitted in July 2021, the Council gave the developer written advice and met with it to discuss progress.
27. The Council has said that it kept the decision not to take enforcement action under review, but it cannot evidence that it did so. Given how long it took for the developer to submit an acceptable drainage scheme, I would have expected the Council to review its position (even if it decided not to take enforcement action) at key points. For example, when the developer failed to submit a new scheme, or when it decided that it could not refer the application to its committee as there would be no LDC forthcoming.
28. The situation is complex, and enforcement is discretionary, but overall my analysis is that the Council, while it may have been trying to resolve the situation, failed to show that it kept its decision not to take enforcement action under review. This is fault by the Council. The drainage strategy goes to the heart of the planning permission. Without it, the Council may not have been able to grant permission. And so I would expect well-evidenced decision-making when this was not implemented.
29. The Council acknowledged that Mrs K had chased it for information on several occasions, although the Council did respond to her contact. I can see that there were periods in which the Council had no new information, but it could have done more to keep Mrs K informed of its discussions with the Flood Authority and the developer, or to communicate a plan as to what action it might consider and when.
30. The Council has apologised to Mrs K for the delay in getting an approved strategy in place. I cannot say that had the Council acted without delay or had it taken formal enforcement action, that this would have resulted in it approving a drainage scheme sooner. However, the Council’s lack of clear communication with Mrs K, left her uncertain as to whether there would be a resolution, and distressed that flooding might happen again.
31. The Council consulted the Flood Authority on the proposed drainage scheme and ensured further amendments based on its recommendations. I realise that Mrs K does not find the current scheme acceptable, particularly as it does not meet all of the Flood Authority’s standard specifications. However, the Council properly considered whether the scheme is adequate when it approved this. This is evidenced in its planning reports of March and June. In these, the Council shows that it has considered the Flood Authority’s advice in detail and the issues raised by the residents. As such, there was no fault in how the Council approved the variations to planning permission and the current drainage scheme.
32. The Council has explained that it had misunderstood, Mrs K’s concerns that it had denied knowing that a ditch had been infilled and wrongly told her it had not known. It has apologised for this miscommunication. Mrs K suggests that the Council deliberately misled the Flood Authority about this so it would grant the LDC. There is no evidence that the Council did this and in any case, granting of this LDC did not impact on the approval or implementation of a drainage scheme.

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Agreed action

33. In recognition of the uncertainty and distress it caused, the Council has agreed to:
• Apologise to Mrs K; and
• Pay her £200
34. The Council will also share this decision with staff.
35. Within one month of this decision, the Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault by the Council causing Mrs K injustice.

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Investigator's decision on behalf of the Ombudsman