Summary: Mr and Mrs B complained that the Council failed to properly consider their concerns regarding a neighbour’s driveway which they said was causing dampness in their garage. They said the Council delayed in acting on their evidence, ignored their evidence and failed to communicate with them properly. They also complained that the Council directed them to obtain a surveyor’s report at a cost of £660 to prove that the driveway was causing the problem. The Council accepts its communication was at fault and has offered £250 for Mr and Mrs B’s time and trouble. We also found the Council at fault for suggesting Mr and Mrs B should obtain a professional report to decide the issue. The Council has agreed to pay Mr and Mrs B a total of £500.

The complaint

1. Mr and Mrs B complained that Waverley Borough Council (the Council) failed to properly investigate and take action following concerns raised about their neighbour’s driveway. They say the Council delayed in acting on their evidence that the problem was continuing, ignored their evidence and failed to notify them that a decision had been made and the case had been closed. They also complained that the Council left them no option but to spend £660 on a surveyor’s report. They have been caused much frustration and have been put to significant time and trouble in pursuing this matter over three years.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr and Mrs B 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

Permitted development

6. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. This includes driveways larger than five square metres providing they are either made of suitably porous materials or provision is made to direct run-off water from the hard surface to a permeable or porous area within the curtilage of a dwelling-house.

Enforcement

7. 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. 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 July 2018, paragraph 58)

What happened

8. Mr and Mrs B’s neighbour (Mr C) constructed a driveway in February 2017 adjacent to Mr and Mrs B’s garage. In May 2017Mr and Mrs B contacted the Council about the driveway. They were concerned that the driveway was directing water towards their boundary which was seeping into their garage causing dampness. The Council visited both Mr and Mrs B and Mr C and carried out a hosepipe test to see what happened to the water. It concluded the driveway did not meet the permitted development regulations because the hard surface was not adequately permeable and did not have adequate water run-off. The Council requested a schedule of remedial works paying particular attention to the clay subsoil and for the work to be completed within three months.
9. The Council approved the proposed work in June 2017 and recommended a hosepipe test in September 2017.
10. The work was done in August 2017 while Mr C was away. Mr B rang the Council during this period concerned that the trench was not being dug below ground level. The Council declined to visit. Mr C told the Council on 19 September 2017 that the work had been completed and asking if it wanted to inspect it. The Council did not reply.
11. In November 2017 Mr B contacted the Council again to complain that the dampness was worse. The Council visited Mr B on 23 November 2017. He also sent some photographs illustrating the problem and alleged that the work had not been completed properly. The Council said that a senior officer would visit in the new year, but this did not take place due to Mr C’s absence on holiday and bad snow.
12. Mr B contacted the Council again in March and April 2018 to say the problem still persisted. He sent some more photographs. The Council visited Mr C on 15 May 2018 and carried out a hosepipe test (ran water from a hosepipe over the driveway for 10 minutes directed at Mr B’s property). Officers said the water visibly soaked into the drainage channel and dispersed into the rear garden of Mr C’s property via the drainage pipe. They could not see any visible breaches in the construction of the drainage or soakaway. Officers took photographs. They also noted Mr and Mrs B’s view that the problem did not occur before the driveway was built and they did not think surface water was causing the damp. After the visit Mr C sent some photographs of the construction work from September 2017.
13. Mr B contacted the Council on 22 May 2018 to say that even though it had not rained, water had seeped into their garage following the hosepipe test. He sent photographs to illustrate the problem.
14. The Council held an internal meeting on 30 May 2018 with a senior enforcement officer and an engineer. The engineer said it was highly unlikely that the dampness in the garage would not have been present prior to the construction of the driveway and that it would take half a day at most for water permeating through the driveway or nearby soft ground to present as dampness in the garage. The officer advised that because the winter of 2017/18 had been particularly wet, it would be best to monitor the situation for a further winter as there was not enough information to definitively say where the water was coming from.
15. There are no further records until November 2018 when Mr B contacted the Council to say the hot dry summer weather dried out the garage, but the problem had recently returned following wet weather. The Council replied in December 2018. It said it was satisfied, after its visit in May 2018, that the driveway was permitted development. It said there was no clear evidence to show that water in their garage following heavy rainfall was explicitly caused by surface water from Mr C’s driveway. There was insufficient evidence to justify enforcement action. The Council also said:

‘Should you be able to provide evidence (by way of a professional report from a surveyor or drainage engineer) that the water present in your garage has been directed from the surface of the driveway … then we will be able to reconsider our position with regards to enforcement.’

16. The Council closed the case after sending the letter. It said it was satisfied after the test in May 2018 that water was not permeating the driveway and was permitted development. The Council did not tell Mr and Mrs B that it had closed the case.
17. Mr B complained in January 2019 about the Council’s suggestion that he had to provide professional evidence to prove their case. The Council requested clarification of the situation in February 2019 which Mr B provided.
18. The Council responded in July 2019. It said Mr C had provided photographs showing the various stages of the remedial work were in accordance with the requirements. It said that additional evidence was required to prove that the water appearing in the garage following heavy rainfall was clearly being directed from the surface of Mr C’s driveway and not some other source.
19. In September 2019 Mr B provided a surveyor’s report confirming that the problem was caused by Mr C’s driveway and recommending similar work to that recommended by the Council in June 2017. The report cost Mr B £660.
20. In October 2019 Mr B confirmed to the Council that Mr C had agreed to do the work. The Council said Mr B had resolved the matter with Mr C and it was Mr B’s decision to seek professional advice. It did not agree it should reimburse Mr B for the cost of the report.
21. Mr B made a formal complaint. The Council sent a stage two response in January 2020. It said:
• It had not visited the site in August 2017 to inspect the works because it was Mr C’s responsibility to ensure the work was done correctly.
• The Council had experienced some difficulty in contacting Mr C during early 2018 and the bad weather in Spring 2018 meant a further visit was not arranged until May 2018.
• After this visit the officers decided on the balance of probabilities that the driveway was now permitted development.
• It should have informed Mr B of its conclusions at this point and it apologised for not doing so in May 2018 and for not confirming the case was closed in December 2018.
• It was Mr B’s decision to pay for a professional report and the Council would not reimburse the cost.
22. Mr B complained to the Ombudsman in August 2020.
23. In response to my enquiries the Council accepted it should have notified Mr B in May 2018 of the outcome of its investigation and in December 2018 that it had closed the case. It offered £250 in recognition of their time and trouble in pursuing the concerns.

Analysis

24. The Council took action promptly in response to Mr and Mrs B’s initial complaint, ensuring Mr C carried out work to the driveway to improve the water run-off/permeability. It was not the Council’s role to inspect the work while it was being done. However, I consider it should have responded to Mr C’s email in September 2017 and taken up his offer to check the driveway was now permitted development once the work was completed. It did not do so until November 2017 when Mr B complained of further problems. This was fault.
25. The Council visited promptly when Mr B complained in November 2017. There was some delay in arranging a visit due to Mr C being away, followed by bad weather. But it acted promptly following contact from Mr B in March/April 2018, gaining information from both parties, carrying out a visit and hosepipe test.
26. It considered further information from Mr B and Mr C including photographs and consulted with an engineer, who recommended waiting until the autumn to carry out a further hosepipe test. However, the Council did not reach a conclusion at this point or take any further action and did not contact Mr B to let him know what was happening. This was fault. Mr B was left with uncertainty as to the outcome of the test.
27. It was only following contact from Mr B again in November 2018 that the Council informed Mr B it had decided the driveway was permitted development and closed the case. This was fault. It did not carry out a further test but simply closed the case on the basis of the information it already had in May 2018. This exacerbated Mr B’s uncertainty and caused him further time and trouble chasing up the Council again.
28. I cannot find fault with the Council’s view that the driveway was permitted development. It took into account information from both parties, its own investigation and consulted with an engineer. I note it did not carry out another hosepipe test in September 2018 as suggested by the engineer, but I cannot say this would have affected the Council’s decision given that problems did not recur until November 2018.
29. But having decided the driveway was permitted development and no enforcement action was possible, the Council then confused the issue by suggesting Mr B could obtain a surveyor’s report to persuade the Council that it was not permitted development. This was a decision for the Council to make and it was fault to suggest Mr B should provide the evidence to assist it to make a definitive decision. While it was ultimately Mr B’s decision to obtain that evidence and he did so without further discussion with the Council, I consider the Council had left him with no other option at that point.

Agreed action

30. I welcomed the Council’s offer of £250. But I considered a higher amount was appropriate. I asked the Council (within one month of the date of my final decision) to pay Mr and Mrs B a total of £500 to recognise not only their time and trouble, but some of the extra costs they incurred in obtaining a surveyor’s report.

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Final decision

31. I consider this is a proportionate way of putting right the injustice caused to Mr and Mrs B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman