Summary: The Council was not at fault in how it dealt with Ms X’s report of a breach of planning control near her home.

The complaint

1. Ms X says the Council failed to ensure a developer complied with a planning permission when building near her home. Ms X says this failure led to flooding on her property. Ms X says the Council then delayed, taking over a year to deal with the breach of planning control; relied on inaccurate information; and showed bias to the developer.
2. Ms X says, as well flooding on her property, the Council’s failures and delay caused her significant stress and put her to much time and trouble. Ms X wants the Council to recognise its failures and change it procedures so others do not face similar problems in the future.

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What I have investigated

3. The development Ms X complains about received planning permission several years ago. And, work to build the development started more than 12 months before Ms X complained to the Ombudsman. When Ms X came to the Ombudsman, about 12 months earlier, Ms X had complained to the Council that changes to the development were causing flooding on her property. I have investigated what happened after Ms X complained about flooding to her property. I have not investigated earlier events, including the Council’s decision to grant the development planning permission. But, I have taken account of those earlier events where and to the extent I have found it necessary to give proper context to Ms X’s complaint about flooding. My reasons to limiting my investigation are set out in paragraph 63 of this statement.

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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 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. 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), 26A(1) and 34(3), as amended)
5. 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)
6. 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

7. I have:

• considered Ms X’s written complaint and supporting information;
• talked to Ms X about the complaint;
• considered planning information about the development available on the Council’s website;
• asked for and considered the Council’s comments and supporting information on the complaint;
• shared, where possible, the Council’s comments and supporting information with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered their responses.

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What I found

Background

Planning permission

8. Most development needs planning permission from the local council. When a council receives a valid planning application, it usually has eight weeks to decide whether to grant or refuse planning permission for the development. Within the eight weeks, the council must publicise the application so people may comment on the development. Councils must take account of, but do not have to agree with, peoples’ comments on planning and land issues when deciding applications. A planning applicant may change application proposals. Councils may, but not have to, publicise such changes.
9. Councils must make their planning decisions in line with planning policies and other material planning considerations. Material planning considerations concern the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or changes to property prices. Material considerations include issues such as overlooking, traffic generation and noise.
10. A planning officer usually prepares a report assessing a planning application. The report will summarise the relevant planning information, including planning policies, peoples’ comments and the planning history of the site. The report will also identify the key planning issues for deciding the application. A report usually ends with a recommendation to grant or refuse planning permission.
11. Senior council officers decide most planning applications but some go to council planning committees for councillors to decide. If an application goes to committee, councils usually allow an objector to address the committee. This gives an objector the opportunity to highlight points made in their written representation face to face with the councillors that will decide the application. Most councils give objectors between three and five minutes to speak at the committee. It is for the decision maker to decide the weight given to any material consideration in deciding an application. This means councillors may disagree with an officer recommendation on an application.
12. When granting planning permission, councils usually place conditions on the permission to control the development. A condition must meet ‘the six tests’. That is, a condition must be necessary; relevant to planning; relevant to the development; enforceable; precise; and reasonable in all other respects. Planning applicants may apply to the Council to change and or remove a condition from a planning permission.

Planning enforcement

13. If development takes place without the necessary planning permission or that does not comply with a planning permission, including its conditions, there will be breach of planning control. Council’s should investigate reported breaches of planning control but they do not have to act against every breach they find. Paragraph 58 of the Government’s National Planning Policy Framework (NPPF) says:

“Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

14. The Government’s Planning Practice Guidance (PPG) refers to the NPPF. The PPG also says early contact with developers is important as it allows councils to find out if they are willing to address any planning breach. The PPG says working to resolve a breach without formal enforcement action is often the quickest and most cost-effective way to deal with a breach.
15. The law says, if a council wants to issue a formal planning enforcement notice, it must be satisfied it is “expedient” (necessary) to do so after considering its planning policies and any other material planning considerations.
16. Sometimes, to resolve a breach, a council may ask for a ‘retrospective’ planning application. Such an application comes after development, which breaches planning control, has taken place. A retrospective application allows people to comment on the development. And, if granting planning permission on a retrospective application, councils may apply conditions to control that development. If a council asks for a retrospective application, it is normal practice to hold further action in any related enforcement investigation until it decides the application.
17. The Council has recently updated its planning enforcement policy and its previous policy (‘the Plan’) is relevant to this complaint. The Plan reflects paragraph 58 of the NPPF (formerly paragraph 207 in an earlier version of the NPPF). The Plan recognises national advice about negotiating to resolve breaches, which the Plan says may affect the time needed to deal with a case. The Plan also recognises that people may apply retrospectively for planning permission for development they have carried out. The Plan says setting case priorities is essential as it receives many reports of breaches each year and has limited resources. The Council will assess reported breaches as ‘high, medium, and low’ priority. Where the Council has identified a breach and may wish to act, the Plan says, normally, its first step will be to use “informal discussion and measures” to resolve matters.
18. The Plan says the Council’s limited resources mean it cannot “proactively monitor all approved development for compliance”. The Plan sets three priorities for proactive compliance and enforcement. These include monitoring sites where a planning condition ‘goes to the heart of the development’, to ensure compliance with such a condition. To achieve this, the Plan says the Council will ‘randomly sample’ such planning permissions to monitor compliance.

What happened

19. The Council received a planning application for development on land near Ms X’s home (‘the Development’). The Council also received a flood risk assessment (FRA) to support the application. The FRA said most of the Development site was within the Environment Agency’s ‘Flood Zone 2’ with a small part in ‘Flood Zone 3’. The FRA assessed the Development site ‘at low risk’ of flooding from a nearby, privately maintained, watercourse and ‘at negligible risk’ from all other sources of flooding. The FRA found, while ‘low risk’, it would be prudent to address that residual risk.
20. In considering surface water drainage, the FRA said it had not considered using soakaways as no soil infiltration tests were available for the Development site. The FRA also said use of soakaways was ‘unlikely to be feasible’. The FRA went on to propose surface water should drain to a third-party drainage network. The FRA set out a ‘discharge rate’ for surface water to leave the Development site and proposed underground storage to achieve these rates.
21. The Council granted planning permission for the Development (‘the Permission’). A condition on the Permission said the developer should comply with the FRA (‘the Condition’).
22. The developer started work to build the Development. The Development was not a development covered by the Plan’s proactive monitoring priorities (see paragraph 18). Ms X contacted the Council having noticed work not shown on the Permission plans. The Council investigated and found there was a breach of planning control but decided it was not necessary to take formal enforcement action. Ms X says the Council missed the opportunity to check the Development complied with the Permission when it investigated this breach.
23. Several months later, Ms X again contacted the Council saying it was not ensuring the Development complied with the Permission. Ms X said the developer had not complied with the FRA and this had led to flooding on her property.
24. The Council considered non-compliance with the FRA would be a breach of the Condition and a ‘medium priority’ under the Plan. This meant the Council had to start an enforcement investigation and update Ms X within 15 working days, which it did. In writing to Ms X, the Council confirmed it was investigating drainage issues affecting the Development and explained why resolving them might take time. The points made by the Council included drainage being the subject of complex regulatory controls; and the FRA not including a detailed surface water strategy scheme. The Council also said the developer had sold parts of the site to people that now occupied some of the new buildings. The Council said it needed to find out what drainage the developer had provided on the site and if it was acceptable. The Council also said it would consult relevant drainage bodies
25. About two months later, the Council updated Ms X on its investigation and offered to meet with her. The Council was still waiting for the developer to provide information about drainage of the site. Ms X replied saying the Council had not taken enforcement action and was not following its complaints procedure, which prevented her from complaining to the Ombudsman. The Council said it was trying to resolve drainage matters by negotiation and did not, currently, consider formal enforcement action ‘expedient’.
26. The Council then met with Ms X and visited the site. Afterwards, the Council wrote to Ms X, recognising her dissatisfaction with what it was doing and providing another update on its enforcement investigation. The Council had now given the developer a deadline for providing drainage information to avoid possible formal enforcement action.
27. In the following month, the Council received and considered the developer’s drainage information and then arranged to meet the developer. The developer agreed to stop working on the site. The Council was also in contact with another public body about local drainage matters (‘the Third Party’). And, the Council sent Ms X three updates.
28. The Council met with the developer and then told Ms X the developer would probably make a planning application to vary the Permission. The developer sent the Council a planning application seeking approval to change the Condition (‘the Application’). The Application included information about a drainage scheme. The Council formally told Ms X of the Application. Ms X (and others) objected to the Application.
29. Over the following three months, the Council publicised the Application and consulted the Third Party and others. After receiving the Third Party’s comments, the Council sought more information from the developer. The Council also updated Ms X on what was happening and when it might decide the Application.
30. Council officers prepared a report on the Application, recommending the grant of planning permission. The report said since granting the Permission, the Environment Agency’s Flood Zone Map had changed. The site was no longer mainly Zone 2 and partly Zone 3, but within Zone 1. The report said any planning application made now for the Development, would not need a flood risk assessment. The report also pointed out there was no legal right for drainage from the site to link with the third-party drainage network set out in the FRA.
31. The Council’s Development Committee (‘the Committee’) were to decide the Application. The Council told Ms X how she could access the report and provided information about the Committee. An objector spoke at the Committee meeting (‘the First Meeting’). The Committee decided to ask the developer for more information.
32. When the Application came back to the Committee, an objector spoke at the meeting (‘the Second Meeting’). The Council decided to grant the Application planning permission. But, further correspondence involving the Council, the Third Party and the developer, meant the Council did not issue a planning decision notice to the developer.
33. The developer made further changes to the Application drainage scheme and sent the details to the Council (‘the Scheme’). The Council publicised the Scheme, including writing to Ms X and sending her details of the Scheme. Ms X says she did not comment on the Scheme as the proposals effectively meant the original FRA measures would be in place on the site. The Committee again considered the Application and the Scheme (‘the Third Meeting’). The Council granted the Application, as changed by the Scheme, planning permission (‘the Second Permission’).
34. Meanwhile, Ms X complained to the Council about its handling of both drainage issues on the Development site and the Application. In the detailed correspondence that followed, Ms X and the Council exchanged views on many points. In coming to the Ombudsman, Ms X said she was concerned the detail in that correspondence might have obscured her overall complaint. Ms X identified two key issues for her complaint to the Ombudsman. These were:

• the Council’s failure to monitor the Development from the outset and so ensure the works complied with the Permission; and
• once non-compliance took place, the Council delayed enforcing the FRA for 16 months as the Second Permission effectively took everyone back to ‘square one’ in saying the developer had to put its measures in place on the site.

Ms X also had continuing concerns about the Council’s responses to some detailed points arising from the complaint correspondence.

Consideration

35. My role is to consider whether the Council acted with fault and, if so, whether that fault caused Ms X injustice. My focus is on the two key issues identified by Ms X. And, where not covered by those two key issues, I have also considered the other points of continuing concern to Ms X. I do not find it necessary, and have not, addressed every point raised by Ms X in her correspondence with the Council to reach on view on whether the Council acted with fault.

The failure to monitor the Development

36. Ms X says the Council failed in its duty to check the Development complied with the Permission. And, this included the Council’s failure to review all works when she first reported a breach of planning control on the site.
37. The primary responsibility for complying with a planning permission rests with the landowner/developer. If they fail to comply with planning (or any other relevant legal rules) they risk enforcement action. Councils do not have a general duty to check sites to ensure development complies with any planning permission. Most planning enforcement work is reactive, that is, councils respond to peoples’ reports of a breach of planning control. Here, the Plan sets out how the Council intends to proactively enforce development. The Development does not fall within the Council’s proactive enforcement priorities.
38. I recognise Ms X may have expected the Council to review the whole Development when dealing with the breach she first reported. And yet, the Council did not need to do so. I do not find the Council fell below acceptable administrative standards in not carrying out a general investigation into the Development on the site.
39. Overall, I do not find the Council at fault because it did not proactively check the Development was built in line with the Permission.

The delay in enforcing the FRA

40. Ms X says it took the Council 16 months to enforce the Condition. I agree the Second Permission came nearly 16 months after Ms X told the Council the developer was not complying with the FRA. I recognise this is a long time. And yet, planning enforcement can take a long time and the Plan reflects this. The issue for me is whether during the 16 months the Council acted with fault.
41. The Council’s assessment of the breach as a ‘medium priority’ is in line with the Plan. The evidence shows the Council updated Ms X about its enforcement investigation within 15 working days of receiving her report about non-compliance with the FRA. Again, this in line with the Plan.
42. The Council accepts it did not regularly (every 15 working days) contact Ms X over the next two months. And yet, the Plan does not provide for such contact. During these two months, the Council was in touch with the developer and the Third Party. The Council’s planning enforcement officer also liaised with building control colleagues. The evidence shows the Council was seeking information from the developer about what drainage measures were in place. This is an informal step I would expect the Council to take at the start of an enforcement investigation into an alleged breach of the Condition.
43. At the end of two months, remaining without information from the developer, the Council set a deadline for its production to avoid more formal action. Again, this is a ‘step up’ in I would expect the Council to take and is in line with the Plan and national guidance about seeking informal resolution. This step also achieved the Council’s aim in having information about drainage of the site.
44. Over the next two months, the Council was considering the developer’s information and liaising further with interested parties. This led to the Council inviting the developer to make a retrospective planning application to change the Condition. The Council points out the FRA did not include details of any drainage measures to achieve the ‘discharge rates’ in the FRA and or how to connect to the third-party drainage network. This reflects what it said to Ms X at the start of its investigation (see paragraph 24). The Council said asking for a retrospective planning application to vary the Condition would allow it to consult interested parties to secure an acceptable drainage scheme. And, if it granted planning permission, it could impose any necessary and reasonable conditions to ensure implementation of the approved scheme. Given the circumstances, including the absence of a specific drainage scheme in the FRA, I find the Council’s approach sustainable and justified.
45. However, it is regrettable the Permission did not include a condition about a specific drainage scheme, its approval and the timing of its provision. But, the Permission is years’ old. It is too late to investigate the Council’s decision to grant the Permission. And, any investigation now could achieve little as the Development is substantively complete. The Council also says it does now normally condition planning permissions to secure specific drainage schemes. Here, given the position in which the Council found itself, inviting a retrospective planning application could provide an informal resolution to the breach of planning control. Such action was also in line with the Plan and national guidance.
46. Having received the Application, which it asked for, the Council’s enforcement investigation was effectively ‘on hold’. This is normal practice and I would not usually expect a council to continue with enforcement action in such circumstances. It then took over nine months for the Council to decide the Application. Given, councils should decide most planning applications within eight weeks, this is a long time.
47. In considering the time taken, I recognise the Committee were to decide the Application. Dates for meetings are fixed and legal rules mean reports must be available before a meeting takes place. So, adhering to committee dates and rules may affect the timing of a decision. The Application also arrived when people are likely to be on leave. However, the First Meeting was about sixteen weeks after the Council received the Application. This is a significant time.
48. The Council had received the Third Party’s comments about five weeks before the First Meeting. On receiving those comments, the Council sought more information from the developer and from its officers. The Council also updated Ms X, including about timescales for the Application going to the Committee. I would expect the Council to want the Third Party’s comments before completing its assessment of the Application. As the Council had promptly asked for those comments on receiving the Application (and later chased this up), I do not find it at fault for awaiting the Third Party’s response. Once the Council had those comments, it acted on them without delay, seeking clarification of some points. The Council then prepared a report for the next meeting of the Committee. The report recommended granting the Application planning permission.
49. Ms X considered the Council was biased towards the developer. I have therefore carefully considered the report assessing the Application. It gives the background to the Application; the planning history of the site; summarises peoples’ comments; and identifies both relevant planning policies and the main planning issues for deciding of the Application. The report then considers each of the identified main issues, which leads to the officers’ recommendation. The report reflects normal practice (see paragraph 10). I find no evidence officers acted other than to consider the Application on its planning merits, which led to the recommendation to grant planning permission.
50. Having assessed the Application and reached that recommendation, I would expect the Council’s officers to explain how and why that was their view at the Committee. Again, I recognise this may appear biased to the developer and yet, councils employ planning officers to give their professional advice and views on planning matters. Without a recording of the First (or Second and Third) Meetings, I cannot reach an evidence based objective view about whether there was fault in what officers said.
51. The Committee did not decide the Application at the First Meeting. Instead, councillors wanted more information given peoples’ concerns about the Application. The Committee set a date for officers to report back to them; which date officers met. This was an approach open to the Committee. (Although, after eight weeks, the developer could have appealed to the Secretary of State and taken the planning decision out of the Council’s control.) But, it meant further time passed without resolution of the breach of planning control. However, the Council was responding to the concerns of local people, including Ms X, in seeking more information. So, while further weeks passed, the Council had sustainable reasons for not deciding the Application.
52. However, despite the Council deciding to grant the Application planning permission at the Second Meeting, this did not happen. So, the breach of planning control continued. A further four months passed before the Application returned to councillors at the Third Meeting. Again, this is a long time. And yet, the evidence shows involvement of the Third Party, and others, affected what happened after the Second Meeting. And, Ms X was one of those dissatisfied with the Council’s decision, at the Second Meeting, to grant the Application planning permission.
53. In the four months between the Second and Third Meetings, the Council was in contact with the developer, the Third Party and Ms X. The developer then presented the Scheme, which the Council quickly and formally publicised so local people again had an opportunity to comment. The Scheme was acceptable to the Third Party and Ms X made no comments on it. Officers without delay returned to the Committee and the Council granted the Second Permission approving the Scheme. Essentially, this resolved the breach of the Condition. And, recently, Ms X has confirmed work to put the Scheme in place has immediately stopped flooding on her property.
54. Ms X says, after 16 months, the grant of the Second Permission, meant the Council had finally enforced the FRA. And, the Council could have done this at the start of those 16 months. I recognise Ms X’s frustration about what happened. And yet, formal enforcement action is not normally the ‘first’ step’ in resolving a breach of planning control. Rather, most cases should be, and are, resolved through negotiation and informal action.
55. It is also doubtful whether the Council could have, successfully, taken formal action to enforce the Condition. The Condition does not, in referring to the FRA, set out specifically what the developer must do nor give a time limit for doing anything. I also find the Scheme differs from the FRA/Condition. The Scheme does provide specific detailed measures to deal with surface water drainage from the site. The FRA does not include such measures nor, therefore, does the Condition. However, the Scheme details should achieve the ‘discharge rates’ set out in the FRA and so ‘comply’ with the FRA. The Scheme also includes added ground level measures not referred to in the FRA to help with surface water runoff. The Third Party said these ground level measures would “ensure flow is captured…before flowing onto adjacent properties”.
56. Resolving matters did take a long time, and the Council explained why this was likely to Ms X at the start of its enforcement investigation. Overall, based on the available the evidence, I do not find the Council’s enforcement investigation or handling of the Application fell below acceptable administrative standards.

Other points

57. Ms X’s other main points of continuing concern arise from the Second Meeting. For my purposes, no planning decision notice either refusing or approving the Application followed this meeting. So, if there had been any fault at the Second Meeting, the Council could put that right up to the time it issued the Second Permission.
58. At the Second Meeting, Ms X says officers misled councillors by providing false information. The information of concern to Ms X was a plan. The plan bears the logo of the relevant body and I have seen no evidence that what the plan does show is wrong. I do not therefore find the plan provided false information.
59. The problem with the plan was it did not show part of the site, which Ms X’s plan did show: The Council has apologised for this in responding to Ms X’s complaint. Officers also set out what had happened in their report to the Third Meeting. The use of an incomplete plan at the Second Meeting is regrettable. And yet, the contents of the plan were not relevant to the Council’s planning decision. The grant of planning permission approves development only for planning and land use purposes. Development may, for example, affect (or need connection with) cables, pipes or other equipment belonging to a gas, water or electricity company. If so, dealing with such matters is normally for the developer and relevant company and not the Council as local planning authority. I do not find the plan, as presented to the Second Meeting, affected the Council’s decision to grant the Second Permission.
60. Ms X says the Council’s officers asked the developer for the information the Committee asked for at the First Meeting. Ms X says the Council did not therefore act impartially. The Council had registered the Application more than eight weeks before the First Meeting. The developer did not need to provide added information but was entitled to have a decision on the Application (or appeal, taking the decision out of the Council’s control). Given that position, I would expect the Council to approach developer for the information. Having received information from the developer, a council would not routinely check the source of that information. And here, the information the Council received included a plan bearing a company logo and third-party emails. The developer also proposed a change to the Application because other information asked for by the Council was not forthcoming. I find nothing here to suggest the Council acted with fault in accepting the developer’s information.
61. Ms X also says the Council did not publicise changes the developer proposed in not providing some of the added information the Committee asked for. And, the Chair of the Second Meeting failed to do anything about this. Councils have a discretion about whether to publicise changes made to planning applications (see paragraph 8). I have not considered whether the Council, in not using its discretion to publicise the then proposed change, was at fault. This is because the Council did not grant planning permission for these changes. Between the Second and Third Meetings, the Council did publicise the Scheme, which it later approved in granting the Second Permission (see paragraph 57).

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Final decision

62. I completed my investigation finding no fault by the Council in how it dealt with the breach of the Condition, including its handling of the Application.

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Parts of the complaint that I did not investigate

63. Ms X’s complaint covers a breach of planning control she reported about a year before she told the Council about flooding on her property. A complaint about the Council’s handling of this earlier breach of planning control is a ‘late complaint’ (see paragraph 5). I find no good reason to exercise my discretion and now investigate these earlier events. In reaching this view, I have taken into account the development near Ms X’s home is largely complete. And, the developer has sold parts of the site and new buildings are occupied by their new owners.

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Investigator's decision on behalf of the Ombudsman