Summary: Mr and Mrs X complained about the Council’s failure to protect them from odour coming from a private sewage treatment plant. We ended our investigation because it is unlikely to result in a finding of fault or a significant injustice we can remedy.

The complaint

1. Mr and Mrs X complained about the Council’s failure to protect them from odour from a private sewage treatment plant, that was built to treat foul water from their home.
2. Mr and Mrs X said the odour from the treatment plant would occasionally drift over their garden and into their home.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is or was another body better placed to consider the issues raised in this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and my enquiries. I have also considered documents from its planning files, including the plans and the case officer’s report.
5. I gave the complainants and the Council an opportunity to comment on a draft of this decision and took account of their comments before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

12. Planning inspectors can consider other matters, including appeals against refusals for applications for environmental permits.
13. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Building Control law and guidance

14. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
15. Building regulations approval can be granted by Council’s acting as building control authorities, or by independent ‘approved’ inspectors. Council’s employ building control officers (BCOs) to carry out this work.
16. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The BCO/independent approved inspector will visit the site at various stages of the work to check compliance with building regulations.
17. There have been court challenges where owners of buildings have sought to hold Council building control authorities liable for defects in building work they have inspected. The courts have decided that Council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

Background

18. Mr and Mrs X bought a house that had a private system for treating foul water. Instead of connecting to the public sewer, foul water from their property was diverted to a treatment plant.
19. The foul and surface water drainage system had been approved by a planning condition imposed by the Council before the house was built and the complainants had become its owners. To support the planning application, the developer had employed an independent approved inspector to advise on building regulation matters. The independent approved inspector said that the proposed foul water treatment system did not require a permit from the Environment Agency (EA).
20. The Council approved the application subject to a planning condition controlling foul water, requiring details to be provided and approved in writing before the house was occupied.
21. The developer submitted details of the treatment plant, and these were approved by the Council.
22. A few years later, but before the houses were occupied, the developer applied to revise some of the previously approved plans. The Council approved this application, and its decision included the same condition relating to foul and surface water provisions.
23. After Mr and Mrs X moved into their house, they noticed occasional unpleasant odour coming from the foul water treatment plant. They brought their concerns to the attention of the Council and the EA.
24. Mr and Mrs X said the Council’s planning officers initially said there was no breach of planning control, but later realised the treatment plant equipment did not match that which it had approved under its planning condition.
25. Mr and Mrs X said the Council’s environmental protection service did begin action to resolve the problem of bad smell from the treatment plant, but later said they had no power to enforce, because the odour was not coming from an ‘industrial, trade or business premises’.
26. The EA also considered the sewage treatment plant and said the independent approved inspector had been wrong to say it did not require an environmental permit.
27. The developer applied for an environmental permit, but the EA refused permission. The EA found that though some of the problems with the treatment plant had been repaired, the system was still unlawful because it discharged an unacceptable amount of water onto nearby land, some of which eventually found its way into a watercourse.
28. The developer appealed to the Planning Inspectorate against the EA’s permit refusal. The planning inspector considered the appeal but did no uphold it. The planning inspector decided that it was not unreasonable to expect the developer to pay for the extra cost of connecting the foul water drainage system to the public sewer.
29. The developer applied for planning permission to decommission the sewage treatment plant and connect to the public sewer instead. The Council approved this application.
30. Mr X told me that the connection to the public sewer happened towards the end of last year and resolved the problems they had with bad odours from the sewage treatment plant.

My findings

31. We are not a planning appeal body. Our role is to review the process by which planning decisions are made.
32. Before we begin or continue our investigations, we need evidence to show it is likely there was fault in the decision making process that caused the individual complainant a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
33. It must have been difficult for Mr and Mrs X to live so close to a sewage treatment plant that occasionally discharged foul smelling water. However, the question for me is whether the complainants’ experience was caused by some fault in the Council’s decision making processes.
34. I think it is unlikely that further investigation would find evidence to show the Council was responsible for what has happened, and my reasons are as follows:
• The Council’s planners are not experts in building regulation matters. Independent approved inspectors are meant to be experts on building regulations, and it was not fault for the Council to accept what it had been told by the independent approved inspector.
• By the time the Council realised there was a breach of planning control because different treatment plant had been installed, the EA was already dealing with the issue using its powers. The Council reserved the right to enforce its condition, right up until the problem was resolved by the connection to the public sewer. I cannot say it was at fault for not taking planning enforcement action sooner, as it could not know the outcome of the EA action and appeal to the Planning Inspectorate.
• We have to remember that ultimately, this was a private drainage system subject to private rights and interests. The role of the Council and the other public bodies is to serve the interests of the public. In this case it is likely the main aim of the public bodies was the protection of the environment from pollution, not the rights and interests of private landowners.
• Builders and landowners are ultimately responsible for ensuring properties are safe and compliant with building regulations.
• I have reviewed the main planning documents, including planning case officer reports. I can see the Council took account of application plans, planning policy and guidance, the comments from consultees, including the public, before making its planning decisions. In these circumstances it is unlikely we would find fault in the decision making process. Providing the Council makes its decisions without fault, it is free to make any planning judgement it chooses.
• The Council did eventually find a breach of condition but decided not to pursue it until the issue with the sewage treatment plant had been replaced. This decision was within the scope of its discretion.

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Final decision

35. I ended my investigation as it is unlikely to result in a finding of fault or a recommendation for a remedy against the Council.

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Investigator's decision on behalf of the Ombudsman