Summary: Mr X, who is complaining on his behalf and that of Mr Y, says the Council is at fault in its handling of planning applications for a site near their homes. They allege this fault has resulted in damage to Mr X’s trees and flooding at Mr Y’s home. Only the courts, and not the Ombudsman, can decide if the Council is liable for the damage caused. For this reason we have discontinued investigation of this matter.

The complaint

1. Mr X, who is complaining on his behalf and that of Mr Y, says the Council is at fault in its handling of planning applications for a site near their homes. In particular they say the Council:

• failed to impose a condition on planning application 1 requiring the recommendations of the Arboricultural Report to be followed during the construction of the development; and
• failed to have regard to the comments made by the local county council’s Flood and Water Management Team for application 2, which stated the construction plan should confirm how surface water will be managed during construction.

They say these failings led to damage to trees on Mr X’s property and flooding at Mr Y’s home. They also say the Council is at fault in its handling of their complaint about these matters.

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What I have investigated

2. I have not investigated Mr X and Mr Y’s concerns that the damage to their home has been caused by the failings they allege. The later parts of my statement explain my reasons for doing so.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
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. As part of my investigation I discussed the complaint with Mr X and considered information he provided. This included correspondence between him and the Flood and Water Management Team at the local county council. I also made enquiries of the Council and considered its response and had regard to documents on the relevant planning applications. I set out my initial thoughts on the complaint in a draft decision statement and considered Mr X’s comments in response.

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What I found

Planning Conditions

8. Planning conditions are requirements attached to a planning permission to limit, control, or direct the way a development is carried out.

Background

9. In 2013 the Council received an outlining planning application (Application 1) for development of a site which adjoins the homes of Mr X and Mr Y.
10. As part of the application an arboricultural report was submitted on behalf of the applicant. The report made recommendations about how to protect trees next to the site during the construction and demolition process.
11. The Council approved Application 1 in October 2013 subject to conditions including one requiring a surface water drainage scheme be approved prior to works commencing. There was no condition relating to the protection of trees next to the site.
12. In December 2017, the Council received an application (Application 2) to discharge conditions for Application 1. The application included details of a construction management plan.
13. As a statutory consultee, the county council commented on the condition requiring a surface water drainage scheme. It raised concern about the constriction management plan saying: “The Construction Plan should clearly confirm how surface water will be managed on site during construction to prevent an increase in flood risk off site and avoid pollution or damage to proposed soakaway systems”
14. Despite the comments of the county council, the Council did not require an amendment to the construction plan and it approved the application in April 2018.
15. In September 2018 construction works at the site breached the root protection area of a tree in Mr X’s garden. The roots of another tree in his garden were cut.
16. A further incident of damage to Mr X’s trees occurred in July 2019. On this occasion Mr X contacted the Council’s Tree Officer. This resulted in the contractor undertaking works to protect Mr X’s trees including erecting a protective barrier around the trees and replacing the soil and watering the roots.
17. Mr X then learned the Council had not acted on the recommendations made in the arboricultural report for Application 1.
18. In October Mr Y’s home was flooded during a period of heavy rainfall. While the water did not enter his home, an outbuilding was damaged. I understand Mr Y made a claim against his insurance for the damage.
19. Later that month a soakaway was constructed at the site which also flooded requiring water to pumped to avoid it entering Mr Y’s home.
20. Mr X reported the issue on Mr Y’s behalf and during this process he learned the Council had not acted on the comments of the county council and required amendments to the construction plan.
21. Mr X submitted a complaint on behalf of himself and Mr X to the Council about both matters.
22. The officer who considered the applications on behalf of the Council replied to the complaint. The response said that the county council did not request a condition and the comments it made were the opinions of officers. These were not matters it could include in the report or that would be enforceable. It also said it had not received any reports about damage to Mr X’s trees.
23. Mr X and Mr Y remained dissatisfied and escalated their complaint. They also said they were unhappy that the officer who determined the applications had replied to their complaint.
24. The Council replied saying:

• a different officer should have replied to their initial complaint. It apologised this was not the case but said it considered the response was impartial and thorough;
• there was no outstanding enforcement action relating to the trees at Mr X’s home; and
• it was satisfied the county council was happy with the drainage proposals for the site and that the plan was being implemented as required. It said the level of rainfall on the day Mr Y’s home was flooded was exceptional and resulted in other flooding incidents in the local area.

25. Mr X and Mr Y remained unhappy and approached the Ombudsman. They said the Councils actions failed to protect the homes adjacent to the development site resulting in damage to their homes.
26. The Council replied to our enquiries saying:

• the arboricultural report was reviewed by officers but its Arboricultural Officer did not request a condition be attached to the planning permission for Application 1;
• conditions on drainage and highways were approved without any objections from the county council;
• it had not been provided with any evidence that the damage to Mr X and Mr Y’s property would not have occurred had the Council acted differently; and
• the developer has rectified issues with the drainage in the part of the site near Mr Y’s home and there have been no drainage issues during recent heavy rain or signs of run-off from the site.

27. Mr X says there was further flooding at Mr Y’s home in early October 2020.

Analysis

28. Mr X and Mr Y say the Council was at fault because the officer who considered the planning applications responded to their initial complaint. I agree this is fault. but note the Council has apologised. I consider this suitably addressed the injustice caused to them.

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Final decision

29. I have discontinued my investigation into this complaint as I consider the substantive matter is best determined by the courts.

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Parts of the complaint that I did not investigate

30. Mr X and Mr Y argue damage to their homes would not have occurred if the Council had:
• included a condition to follow the recommendations made in the arboricultural report; and
• acted on the comments made by the county council regarding a surface water drainage plan.
31. Their complaint is, in effect, the Council has been negligent. Negligence is a matter best decided by the courts. We cannot decide if the Council is liable for any damage. For this reason, I have decided not to investigate this matter further.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman