Summary: The Ombudsman will not investigate Mr B’s complaint about drainage at a new housing development adjacent to his home. The complaint is late and there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

The complaint

1. The complainant, whom I shall call Mr B, complains the Council granted planning permission for a new housing development and has approved a drainage scheme that is inadequate. Mr B says his garden has been affected by flooding for the three years since the development commenced and his lawn and hedge have been damaged.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered the information provided by Mr B and I considered the comments he made in response to a draft decision before I made a final decision.

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What I found

7. The Council granted planning permission for the new housing development in 2016. The planning permission was conditional on the applicant submitting a drainage strategy and details of the maintenance and management of the drainage scheme. The Council approved an application to discharge the planning condition relating to drainage in November 2016.
8. While Mr B complains the drainage at the new development is inadequate and this is causing problems with flooding in his garden, the Ombudsman will not investigate this complaint. The Council’s decisions to approve the planning applications and discharge the planning conditions relating to drainage were made more than 12 months ago and are therefore late. The restriction in paragraph 3 applies and the Ombudsman cannot normally investigate.
9. I do not consider there are any good reasons for the Ombudsman to exercise his discretion and now investigate this late complaint. This is because Mr B has been aware of the issues he complains about for more than 12 months, and while he has been in contact with the Council throughout that time, further consideration of the complaint is unlikely to find fault with the way the Council made its decisions. Approving the applications were professional judgements officers were entitled to make. Officers consulted with the lead local flood authority and the Environment Agency when considering the applications for planning permission and to discharge the drainage conditions.
10. The Ombudsman also could not provide a second opinion on whether the approved drainage system is adequate and whether the Council has any liability to Mr B for the damage to his property. These are matters only the courts can decide. The Ombudsman could not achieve the outcome Mr B seeks of changes to the drainage system and compensation for damage and his time in pursuing the matter.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because the complaint is late and there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman