Summary: Mr C complains the Council failed to investigate properly and take appropriate action in response to his reports about breaches of planning control and did not notify him about a reserved matters application. Mr C says his garden suffers from flooding as a result. The Ombudsman has found some fault by the Council for a delay in responding to Mr C and providing him with requested information. The Ombudsman considers the apology the Council has already provided Mr C is enough to remedy his injustice.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to investigate properly and take appropriate action in response to his reports about breaches of planning control and did not notify him about a reserved matters application. Mr C says the developer has re-routed a watercourse without permission and reduced the size of a balancing pond due to building a car park.
2. Mr C says because of the Council’s fault, his garden now suffers from flooding which reduces the use and enjoyment of the same and he has spent unnecessary time and trouble in trying to resolve the issue.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
4. 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)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing some third-party details. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. Outline applications are used to establish the principle of a proposal, leaving the ‘reserved matters’ to be considered at a later stage. Applications may be made with some or all matters reserved until later.
9. If a developer is granted outline permission, they must apply for reserved matters approval within 3 years. An application for approval of reserved matters is not a planning application and there is no statutory requirement for publicity.
10. When approving reserved matters applications, planning authorities may impose planning conditions. Grant of a reserved application, together with plans and conditions included in an outline approval, amount to a full permission. Once a reserved matters application is approved, development must begin within two years.
11. Planning authorities may take enforcement action where there has been a breach of planning control. Section 171A of the Town and Country Planning Act 1990 defines a breach of planning control as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

12. Enforcement action is discretionary and government guidance says LPAs should act proportionately in responding to suspected breaches of planning control.

Relevant planning history

13. The Council refused a 2012 planning application for a residential development in 2013. The application was subsequently granted outline planning permission on appeal to the Planning Inspectorate in 2014. The Planning Inspector attached a planning condition requiring details for a surface water drainage system to be agreed before any development on site.
14. The developer submitted the required drainage details in 2017 and the Council subsequently discharged the condition after consultation with the County Council. The scheme included a balancing pond with a hydraulic brake system which has now been constructed on site

Key events

15. The Council received and approved a reserved matters application in 2016. Mr C says he was not notified about this application.
16. As set out above, there is no statutory requirement for publicity for a reserved matters application. Nevertheless, the Council says it did notify Mr C and has provided a copy of three letters it sent to his address. The first letter is dated 12 February 2016 and says the Council has received a reserved matters application and sets out how Mr C can view and comment on the proposals. The second letter is dated 23 February and highlights an error in the description contained in the first letter. The third letter is dated 7 June and explains the Council has received some further information which was also available to view. The Council has also provided information from its system to show the date the letters were printed for dispatch.
17. It is unfortunate that Mr C did not receive these letters as it is likely he would have wished to comment. However, I cannot say Mr C did not receive the letters through some fault by the Council.
18. Mr C says he raised concerns about the diversion of a watercourse on the development site in 2015 but the Council did not advise him until recently that any such diversion would be a matter for the County Council as Lead Flood Authority. The Council says it has no records of Mr C contacting its Planning Enforcement Team before July 2018. Mr C’s complaint to the Ombudsman refers to a telephone call he made to the Council in 2015 but that he decided to continue to collect photographic evidence but take no further action until the ‘planning board meeting’. I have taken Mr C to mean he intended to raise the issue formally during the Council’s consideration of the reserved matters application.
19. As set out above, it is unfortunate Mr C was not able to do so as he did not receive the Council’s letters notifying him of the application. Mr C refers to a few telephone conversations with the Council about worsening flooding from mid-2017 but provides no details of the date or who he spoke with. Given the passage of time and limited details provided I do not consider I could establish even on a balance of probabilities what was said during these conversations. I also would have expected Mr C to follow these contacts up in writing if he was unhappy with the response or if the flooding to his garden was continuing to cause serious problems.
20. Mr C says he made repeated telephone calls to the Council in the spring and summer of 2018 about its failure to notify him of the reserved matters application, the re-routing of a watercourse without permission on the site and the required balancing pond being reduced in size due to a parking area. Mr C says he was asked to make a formal report using the Council’s website. This request is not unreasonable if there was not some reason Mr C found it difficult to make his report through the requested channel and advised the Council of this. I note Mr C made a formal report to the Council in writing at the end of July 2018.
21. The Council telephoned Mr C in response to his report during August. The Council also visited the site during August and viewed the approximate area of the balancing pond.  It was noted the outlet was in a slightly different location and the pond appeared to extend slightly further to the east than identified on the approved drawing and that parking bays had been built. The Council did not complete a formal survey as it does not have the equipment to allow a detailed measurement of the balancing pond. 
22. The Council contacted the developer about the size of the balancing pond.  The developer stated the pond had been constructed to the correct volume and had been constructed using GPS equipment to ensure the appropriate layout.  The developer advised the parking bays were a temporary measure whilst three plots facing the pond were being used as show homes and these would be removed in due course.  
23. The Council sent Mr C a copy of the approved drawing for the surface water scheme at the end of August. Mr C wrote to the Council in September as he had not received a written response to his report despite his request and to ask why the Council was not taking enforcement action despite the balancing pond not being built in accordance with the approved drawing. Mr C explained he could not make out all the information provided on the drainage drawing provided by the Council and sought information on the Council’s complaint procedure and the contact details for the Ombudsman.
24. Mr C wrote again to the Council in October as he had not received a response to his September letter or the outcome of his July report. The Council wrote to Mr C in November to explain the altering of any watercourse would be a matter for the County Council as Lead Flood Authority as it would require consent. The Council also explained that during its site visit only a small number of plots had been connected to the balancing pond which was designed to collect water from within the development site only (including runoff from roads/roofs and hardstanding).  The balancing pond was not designed to collect any water from the ditch system that surrounded the development site.  The Council confirmed it did not have enough evidence the balancing pond had not been constructed in accordance with the approved drawing with particular reference to its overall capacity. The car parking area was a temporary feature and the Council noted only a few of the 78 plots were built and the balancing pond full capacity would not be required for some time.
25. Mr C made a formal complaint. The Council apologised to Mr C that he did not receive an earlier reply to his September letter.
26. The Council does not consider it has evidence the balancing pond is not the correct size in terms of capacity and certainly not enough evidence to warrant formal enforcement action.  The Council has explained to Mr C that it does not intend to start any enforcement proceedings at this stage but that this decision does not prejudice its ability to take enforcement action in the future if necessary.
27. Mr C considers the watercourse forms part of the approved drainage scheme for the development and so the Council should have investigated his concerns about it being re-routed and liaised as appropriate with the County Council as Lead Flood Authority. The Council consider them to be separate matters.  The Council says the approved drainage scheme controls water generated from the new development site which is then released into the existing ditch system at one single point.  The drainage condition does not relate to the whole ditch system on the site. The County Council advised in July 2018 that it had received reports of flooding and had made an initial site visit.  The rerouting of any watercourse as suggested by Mr C is a matter for the County Council.
28. The Council met with the County Council and developer in January 2019 to discuss the flooding issue.  The developer and County Council also had a further meeting on site to decide what works could be done to improve the situation. It was considered at that meeting that a change to the design of the channel would potentially stop the build-up of water and reduce the flooding impact.  The County Council have subsequently sought quotes to undertake the works.  This would involve accessing Mr C’s land to undertake the works and the County Council have been in contact with Mr C about this work. Mr C says he has agreed works which will involve the loss of 60 square metres of his property and an ongoing responsibility for a section of the watercourse.
29. Mr C was concerned about a reference to historical flooding at his property which he says is not correct. The Council says Mr C has only provided one set of three photos with an email in November 2018 about flooding but says he has been in regular contact with the County Council each time a flood event happens. Mr C says he sent two emails with eight photographs. The key point here is that the Council has confirmed it is not aware of any historical flooding to Mr C’s property. I note the previous reference to flooding was in the locality of Mr C’s property rather than at his property. The Council accepts flooding is occurring to land that did not flood before. 
30. The County Council were investigating the matter and taking suitable legal advice to establish what could be done to resolve the matter.  It is understood the County Council did not want to instruct the developer to change something that may cause issues to different residents.  The Council accepts there was a delay in responding to Mr C but says this was because the County Council was considering what action it could or should take and Mr C was in regular contact with the County Council during this period. The Ombudsman would still expect the Council to keep in touch with Mr C even if this was simply to say there were ongoing investigations involving the County Council. The failure to do so and the failure to provide the information requested by Mr C is fault. However, I consider the apology the Council has already provided provides a suitable remedy.
31. Based on the information provided, I am satisfied the Council did notify Mr C about the reserved matters application although I accept he did not receive the letters sent. I also consider the Council responded to Mr C’s reports about potential planning breaches and took appropriate action. The Council visited the site and contacted the developer. The Council has decided there was not enough evidence to establish a breach of planning control in relation to the balancing pond requiring formal enforcement action. The balancing pond is considered to be broadly in accordance with the approved drawing and the parking area is a temporary development that was not affecting the capacity of the pond which is the key factor. This is a decision the Council is entitled to reach. The Council has explained the responsibility for any diversion to the watercourse is a matter for the County Council and has liaised as appropriate. There was some delay in responding to Mr C and providing him with information which would constitute fault. However, I do not consider this caused Mr C a particular injustice requiring a further remedy in addition to the apology the Council has already provided.

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Final decision

32. I have completed my investigation as I have fault by the Council but consider its own action of an apology is enough to remedy Mr C’s injustice and the Ombudsman would not seek more.

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Investigator's decision on behalf of the Ombudsman