Summary: Mr X complained the Council failed to take enforcement action against a developer after installing defective drainage at his home, and failed to pursue the developer for making false representations. He also said the Council signed off the drainage without completing proper checks. We found no fault in the Council’s decision-making processes.

The complaint

1. Mr X complained about the drainage system serving his home. He said a developer gave false representations to the Council about the drainage arrangements, and the Council discharged planning conditions and signed off on the system without completing necessary checks or due diligence. He complained the Council failed to take enforcement action against the developer to correct matters, or pursue the developer for making false representations.
2. Mr X also complained about the conduct of Council officers and a local Councillor.
3. Mr X was left with an inadequate and defective drainage system, with waste and water backing up and contaminating surrounding land. Mr X has to take time off work when the system fails, and has suffered significant distress. He said his home is becoming uninhabitable and is unsellable.

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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 how the organisation made its decision, 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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What I have and have not investigated

6. I did not investigate the Council’s original decision to grant planning permission. It is too late, and the Ombudsman is not a planning appeal body. I also did not investigate Mr X’s complaint about the conduct of Council officers. This is a matter for the Council’s own personnel procedures.
7. I investigated the Council’s consideration of planning enforcement action, matters surrounding Building Control signing off on the drainage system, the Council’s consideration of the discharge of a planning condition, and the Council’s consideration of the allegations Mr X made about the developer and a local Councillor.

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mr X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning permission and conditions

11. Most development needs planning permission from the local council. When granting permission councils may impose planning conditions to make the development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum. And councils should only impose conditions where they are necessary, relevant to both planning and the development, precise, enforceable, and otherwise reasonable (‘the six tests’).

Enforcement

12. 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.
13. 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.
14. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. 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.
15. 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 September 2023, paragraph 60)

Building Control and Building Regulations

16. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
17. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
18. A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building inspectors to carry out this work.
19. There are two ways a building owner can get building regulations approval. These are:

• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The Council’s inspector or an independent approved inspector will visit the site at various stages of the work to check compliance with building regulations.

20. There have been court challenges where owners of buildings have sought to hold Council building control authorities liable for defects in building work they have inspected. The courts have decided that Council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner.
21. Owners of buildings may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

Member conduct complaints

22. Complaints about the conduct of local Councillors go to the Council’s Monitoring Officer (MO). The MO informs the Councillor who is the subject of the complaint and assesses whether to investigate. The MO may need to gather more information before proceeding, and will reject complaints where:
• The Councillor was not acting in their capacity as a Councillor.
• They are no longer a Councillor.
• The complaint relates to an offence under section 34 of the Localism Act 2011 or a criminal act while acting or giving the impression of acting as a Councillor. The MO will refer such complaints to the Police and they will not be dealt with under the Council’s complaints procedure.

What happened

23. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
24. Mr X bought his home from a developer. Planning permission required the developer to give the Council details of the drainage scheme used for the development.
25. The Council’s Building Control service inspected the drainage scheme in November 2018. Building Control found rainwater drainage ran to a single soakaway which was inadequate. The developer repositioned the soakaway, and outfall from the treatment plant discharged to a drain at the rear. The developer said they had permission from the landowner and would send this to the Council.
26. The developer gave the Council plans of the drainage for the development in 2019, asking the Council to discharge the planning condition relating to drainage. The plans involved a soakaway for each house to collect rainwater, a sewage treatment plant serving the houses, and a pumping drain also serving the houses to take waste water away before discharging into a ditch at the rear.
27. The Council consulted the Internal Drainage Board (IDB). At first, the IDB said the developer had not asked for consent for surface water and foul water to discharge into a nearby watercourse. The Council therefore could not discharge the condition. However, later in 2019, the IDB confirmed it granted the developer consent, and the Council could discharge the condition.
28. The Council also consulted the Environmental Health service on the developer’s ground contamination desk study. Environmental Health accepted the findings, and the Council discharged the drainage condition.
29. Building Control signed off the property in 2019 after the developer confirmed installing the property’s drainage system to the required standard and in line with planning permission.
30. Mr X contacted Building Control in February 2024 to report drainage issues at his home. Building Control attended and found the drainage system appeared dysfunctional or not installed to plan.
31. Mr X told the Council he was trying to make a claim under his home’s warranty and take legal action against the developer.
32. Building Control reviewed its inspection records. It visited the site in October 2017 and June 2019, but notes were limited as it only made a record where it identified an issue. The inspection notes show officers were satisfied the developer completed the drainage satisfactorily. The Council said this appeared to be based on verbal confirmation from the developer.
33. Building Control explained its concerns to the developer in April 2024 and agreed to work with them to ensure a complaint drainage system. Building Control asked the developer to provide the paperwork and photographic evidence they had confirmed verbally to Building Control in 2019. According to the Council, the developer did not provide this information despite several requests.
34. Mr X emailed the Council with details of the misrepresentations he considered the developer made about the drainage system when securing Council approval. He asked the Council to take action.
35. Council officers met with Mr X in May where he repeated the allegations and showed the Council documentation. The Council said it would need to investigate with the Police and the Anglia Revenue Partnership (ARP).
36. The Council’s MO met with the ARP to see if they could help or act against the developer for potential fraud offences in relation to providing misleading and incorrect information in planning forms. The ARP said the Council would need to stop any contact with the developer while it investigated. The Council decided not to refer the allegations to the ARP at that point, but to continue to work with the developer to find a solution to the drainage issues.
37. Mr X met a local Councillor (Councillor A) in June 2024 to discuss matters about drainage and a planning application made by the developer to remove agricultural restrictions from land bordering Mr X’s home. The drainage system serving Mr X’s home should have included a sewage system on Mr X’s land. However, it is partly on the land owned by the developer which is subject to agricultural restrictions.
38. Mr X made a member conduct complaint about Councillor A in July 2024, including allegations of fraud. Mr X said Councillor A’s conduct at their meeting was inappropriate. He alleged Councillor A had a long-standing relationship with the developer and committed multiple counts of misconduct, including trying to do a deal with him if he did not oppose the developer’s planning application. Mr X wanted the Council to suspend Councillor A, cancel the consideration of the developer’s planning application at an upcoming planning committee meeting, and refer any potential crime to the Police.
39. The Council’s MO told Councillor A about the complaint, and they sent their response. The MO then sought views from the Council’s Independent Person (IP) and Chief Executive. The IP recommended Mr X’s allegations be investigated by an independent third party outside the Council, such as the Police or independent investigator. They also recommended checking with the Police about any current fraud investigation.
40. The Council’s MO met with the Police in August 2024 to discuss Mr X’s allegations about the developer and Councillor A. The MO emailed the Police on 8 August attaching Mr X’s complaint, Councillor A’s response, the Council’s referral to its independent person, and the independent person’s recommendation to refer the allegations to the Police.
41. Two accredited counter fraud managers from the Police reviewed the evidence. However, they did not consider there was enough evidence for the Police to take further action. I have seen the Police’s consideration of the evidence, but I have not detailed it here. That is because it contains confidential information I do not have permission to disclose.
42. The Council’s MO emailed the ARP on 15 August 2024 detailing the allegations of fraud against the developer when gaining approval for the drainage system. This included whether they had permission for the drainage to discharge to a ditch. The MO asked the ARP to review the evidence and give a view on whether further investigation or prosecution should be taken forward.
43. The ARP did not consider there was enough evidence for a criminal case. They did not consider there was evidence showing the developer dishonestly made a representation the drainage was in place and correct. They assumed the developer did not do the work themself but hired an expert. They did not consider an ordinary person would be expected to know the drainage system was wrong.
44. The developer’s agent sent plans of a new drainage scheme on 19 August 2024. However, the plans were incomplete. They only showed changes to the outflow and not the complete system.
45. Mr X complained to the Council on 19 August 2024 about the conduct of two officers working on the drainage and fraud cases. He said the officers were seeking to negotiate a settlement with the developer without his input and without sharing plans with him. He said he referred both officers to the relevant professional bodies they were regulated by.
46. The Council wrote to Mr X on 21 August 2024 confirming the result of the Police and ARP consideration of the allegations.
47. Mr X said the developer carried out the drainage work themselves and there was no third party. He also said the developer failed to inform the IDB they did not have permission for the system to discharge into a neighbouring open ditch, and the system was instead discharging onto the developer’s land.
48. Mr X also raised a further complaint the Council did not send full details of the developer’s misrepresentations to the ARP and Police. This related to issues including the incorrect drainage system and missing acoustic trickle vents to the windows. He wanted the Council to help resolve the drainage issues and arrange a meeting with him and the ARP so he could give them further information.
49. The Council sent its stage one complaint response on 13 September 2024. It said:
• Its focus was on giving guidance and advice to overcome the issues. It tried to help the parties come together to agree a solution.
• Land ownership is a separate matter between the parties and is not for the Council.
• It engaged relevant agencies to consider the alleged fraudulent behaviour by the developer and confirmed the result to Mr X on 21 August 2024.
• The planning service is considering Mr X’s concerns on agricultural restrictions. If necessary, they can provide a letter confirming it would not be expedient to take enforcement action against Mr X over this.
• As the parties could not work together to resolve the matter, it would focus on its statutory duties and consider any applications received.
50. Mr X was dissatisfied with the Council’s response. Mr X gave further information asserting the conclusion reached by the agencies did not consider the full extent of the matter.
51. The Council sent its stage two complaint response on 14 October 2024. It said:
• It gave all available information to the Police and ARP. It could not recall Mr X mentioning the developer installed the drainage themselves at the meeting on 15 May 2024 and it is not mentioned in Mr X’s notes of the meeting.
• Mr X needed proof the developer’s actions were deliberately misleading or a deliberate misrepresentation. It had not seen evidence the developer’s statements were dishonest or that they intended to make a gain or cause a loss when making them.
• Mr X needed evidence clearly showing the developer knew the drainage system was incorrect and their intention in doing so was fraudulent. It said it could not infer this from the fact the developer installed the drainage themselves.
• It could not establish whether there was deliberate fraud by the developer when obtaining Building Control sign off. Building Control report by exception, so it could not say whether the officer who signed off the property inspected the drainage.
• When it signed off the planning condition on trickle vents it relied on information given by the developer. There was no evidence the developer deliberately installed different trickle vents.
• Building Control and the planning service accepted information from the developer in good faith. Any enforcement action for breaches of planning conditions would be against Mr X as the property owner. However, a better solution would be for the parties to work together to complete a compliant scheme.
• It could not defer a planning application from a committee meeting. Mr X’s allegations of fraud relate to his property, not the property being considered by the planning committee. The application was refused in any event.
• It was not possible to arrange a joint meeting with the developer, as they did not agree. The developer also asked the Council not to share their updated drainage plans with Mr X, preferring to do it via solicitors once there was an approved scheme.
• It correctly processed Mr X’s complaint about Councillor A by referring it to the Police and not dealing with it under its complaint protocol. The Council also considered its anti-fraud and corruption strategy, and its chief internal auditor considered the Council should refer the matter to the Police, and the allegations about the developer. The Council met with the Police and gave them all available information.
• The Police did not consider there was evidence Councillor A acted dishonestly to make gain for themselves or loss for another, nor to cause loss or expose another to loss.
• The Police also did not consider there was evidence showing the developer intended to make personal gain or cause loss to another when submitting the drainage report.
52. The Council’s planning service wrote to Mr X on 22 October 2024 after considering possible enforcement action. It said the developer’s planning permission included a condition whereby they had to submit plans for drainage to the Council for it to approve. The developer did that, and the Council considered the scheme was acceptable in principle. The fact the developer did not carry out the drainage in accordance with the plans does not mean the Council was wrong to discharge the condition.
53. The Council said it reviewed whether there was a breach of planning for the drainage condition. It said the condition is not precise as it does not state when the scheme will be implemented or which ditch the scheme will drain into. Officer opinion was the condition is not enforceable. However, the Council said even if it was enforceable, it could only ask for the approved scheme to be installed, and this would not resolve the issues Mr X faced.
54. On the agricultural restriction covering the land where part of Mr X’s drainage sits, the Council said Mr X would not be liable for any action taken if there was a breach of the restriction. The Council did not consider the existence of part of Mr X’s drainage on the land was unauthorised development or a material change of use of the land.
55. In a letter dated 13 November 2024, the Council’s planning service said the land behind Mr X’s home has no permanent features preventing it from being used for permitted purposes. There is therefore no breach. It noted the presence of a black cylinder with a pipe running to Mr X’s garden, but said it was difficult to assess whether development had taken place. In any event, it did not intend to take enforcement action as this would require its removal, leaving Mr X with no drainage.

My investigation

56. Mr X told me surface water was meant to go into a soakaway in the garden. Instead, the developer dug a small pond at the back of the house on their own land. The developer told Building Control they corrected this, but had not done so.
57. The sewage system was meant to be in the garden but is in part on land outside Mr X’s boundary, which the developer owns.
58. Mr X said the outflow of the drainage system is a drainage ditch on neighbouring land. The developer told the IDB they had the landowner’s permission, but this turned out not to be the case. The IDB have therefore now withdrawn their permission and wrote to Mr X stating the drainage system is in breach of the agreement between it and the developer. Because Mr X is the current landowner, the IDB said he must correct things. The IDB have asked Mr X to remove the current system and install a complaint one.
59. Mr X said the developer was supposed to use acoustic vents on the windows, but instead used normal ones.
60. Mr X said he tried taking legal action against the developer, but they closed the company that sold the house to him.
61. On his code of conduct complaint, Mr X considers there was a conflict of interest and improper influence. He said Councillor A tried to do a deal with him, saying Mr X could have the land he wanted if he dropped his objection to the developer’s planning application.
62. The Council told me it entered discussions with Mr X and the developer to help secure a suitable drainage solution. The Council visited the site numerous times, gave advice, and investigated all options to find a resolution. Unfortunately, it believes it has exhausted all avenues to arbitrate a remedy.
63. The Council said Building Control received plans for a new drainage scheme from the developer, but it was not a complete drainage proposal, as requested. It only included the portion of the system from Mr X’s garden to an outfall ditch. Building Control was not convinced the ditch was an open ditch and went back to the developer with its concerns. This is as far as the developer’s proposals went.
64. The Council told me it did not revert back to the ARP following Mr X’s response. It said there is no evidence to support Mr X’s claim the developer did the work themselves. It also said it was reasonable for the ARP to assume the developer would engage someone to do the work, and reasonable for the developer to accept the work of an expert. The Council said an ordinary person cannot be expected to know the drainage was not correct.
65. The Council does not consider it is expedient to pursue the alleged breach involving trickle vents. And, it does not consider trickle vents are needed, so the condition is not enforceable.

Analysis

66. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
67. The amount of information provided by Mr X and the Council was considerable. In this decision, I have not referred to every element of that information, but I have not ignored its significance.

Drainage and planning enforcement

68. The available Building Control records suggest the developer gave verbal assurances about changes made to the drainage system, and about permission obtained for the outflow.
69. Mr X said a Building Control officer told him the notes indicate the drainage was inspected and complied with plans in April 2019.
70. Due to the passage of time, I found there are no conclusive records about exactly what happened in relation to sign off at the Building Control stage.
71. I found Building Control identified problems with the drainage at an early site visit, and told the developer to make changes. The developer confirmed they made the changes, and Building Control signed off on the property. It was the responsibility of the developer to ensure they installed the drainage system correctly. I do not consider there is sufficient evidence for me to find fault with the Council over something which was ultimately the responsibility of the developer.
72. The Council consulted the IDB before discharging the planning condition for drainage. It also consulted Environmental Health about land contamination, with the findings of the developer’s ground contamination desk study being accepted. The Council took the steps we would expect and was not at fault when discharging the drainage condition. It was the developer’s responsibility to install the drainage scheme in line with approved plans.
73. Mr X argues the condition for drainage arrangements should have been approved before work started, but the developer applied to discharge the condition after completing the property. He said the Council was reckless in discharging the condition without evidence of its proper implementation. It was the Council’s role to assess whether the developer’s drainage plans were acceptable in planning terms, which I am satisfied it did properly, including input from relevant consultees. It remained the responsibility of the developer to ensure the plans corresponded to what was implemented on site.
74. The Council considered whether the developer’s failure to install the drainage scheme as planned was a planning breach. It decided the drainage condition was not precise enough for it to establish a breach. If there was a breach, the Council would have to pursue enforcement action against Mr X, as the property owner. It said it did not consider it was expedient to do this.
75. The Council gave Mr X assurances that it did not consider his drainage pipes running into neighbouring land was a planning breach, and that it did not intend to take enforcement action. Rights of access to private land, such as for maintenance of Mr X’s drainage system, are private civil matters outside the Council’s control.
76. The Council also considered the condition requiring acoustic trickle vents was not enforceable, and it was not expedient to take enforcement action.
77. Mr X argued acoustic trickle vents are needed. He said an environmental health officer confirmed this during the original planning stage in 2017.
78. Mr X considers the Council should be liable for negligence if planning conditions it included are not enforceable. Negligence is a matter for the courts. I did not investigate the Council’s original decision to grant planning permission, which I would need to do in order to consider whether there was fault in the way the Council included a planning condition.
79. Planning enforcement action is discretionary. It is for the Council to establish whether a breach has occurred and whether to act. I found the Council met with Mr X, visited the site, and considered his written evidence to fully assess the issues. As part of the process, it was relevant for officers to consider whether the planning conditions were enforceable. This was not the only factor officers considered. They also considered whether it was expedient to act.
80. I did not find fault in the Council’s consideration of the planning issues Mr X raised.

Fraud

81. I found the Council followed correct procedures when considering Mr X’s complaints about Councillor A. Due to the alleged criminal offences, it was correct to refer matters to the Police. Its procedure also says such complaints will not be considered by the Council. The Council’s Member Conduct process had no power to suspend Councillor A as Mr X wanted, nor could it cancel the planning service’s consideration of a planning application.
82. The Police decided there was insufficient evidence to pursue an investigation against Councillor A. The Police also decided there was insufficient evidence to investigate the developer.
83. I found the Council fully discussed both matters with the Police and gave them all available information. There was therefore no fault by the Council.
84. The Council also referred Mr X’s allegations about the developer to the ARP. Again, on the evidence seen, the Council gave the ARP all available information. That included information Mr X sent to the Council. The ARP considered the evidence was not strong enough for a criminal case. That was based on lack of evidence of dishonest representations by the developer, and an assumption by the ARP that the developer hired an expert to do the work – meaning the developer would not be expected to know the drainage system was incorrect.
85. Mr X argued the developer personally installed the drainage themselves, so did know it was wrong. He complained the Council should have gone back to the ARP with this information.
86. The Council said it did not go back to the ARP because there was no proof the developer did the work themselves, and they would not expect an ordinary person to know the drainage was wrong.
87. Mr X told me the developer’s partner installed the drainage, and he provided an email from the developer confirming this.
88. I can appreciate Mr X’s argument and frustration. However, this is not proof of dishonesty, or of the developer’s intentions. I therefore did not find the Council was at fault in the circumstances.
89. I found the Council spoke to the ARP promptly. The ARP said the Council should end discussions with the developer for the ARP to investigate. As the Council was in discussions with the developer with the hope of securing new drainage plans which may resolve matters, it opted to delay the referral while those discussions continued. The Council was trying to bring about a resolution and made a decision it considered was most suitable in the circumstances. It meant the ARP investigated the allegations a few months later instead. I do not consider this is fault. I also do not consider Mr X suffered any significant injustice. The ARP still investigated his allegations, and the slight delay did not impact the investigation or outcome.

Summary

90. I did not find fault in the Council’s consideration of the developer’s drainage plans. The developer’s failure to install the drainage system to plan is not the fault of the Council.
91. The developer is no longer the owner of the drainage system, so the Council cannot take enforcement action against them for planning breaches. It could only act against Mr X in this regard, but it has confirmed it is not expedient to do so. Mr X will need to pursue the drainage issues privately with the developer.
92. The Council cannot prosecute the developer for fraud, or any false or misleading statements made in the planning process. It asked the Police and ARP to consider these issues, but both organisations decided there was not enough evidence of dishonesty or intent to make personal gain. They are professional organisations with the necessary expertise to consider such allegations. It is not for me to come to a view on this. I can only comment on the Council’s actions, which I found were suitable and appropriate in the circumstances and there is no evidence of fault.
93. The Council followed the correct process in referring Mr X’s complaint about Councillor A to the Police.

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Decision

94. We found no fault in the Council’s decision-making processes.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman