Summary: The Ombudsman found no fault on Mrs Z’s complaint about the Council failing to enforce planning conditions about all surface water from a nearby housing development draining in to storage tanks. The Council investigated their concerns and was satisfied with the installed drainage systems. It was not fault for it to decide to take no enforcement action against the developer following poor site management of silt.

The complaint

1. Mrs Z complains about the Council failing to enforce planning conditions about all surface water from a nearby housing development draining into storage tanks: as a result, the changes made by the developer allows water to drain in to a culvert under her property which caused flooding.

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The Ombudsman’s role and powers

2. 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)
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)

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Planning enforcement

4. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
5. A breach of planning control is defined 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. (section 171A, The Town and Country Planning Act 1990)

6. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.
7. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018), and in more detail, in its online guidance, ‘Ensuring effective enforcement’.

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.”

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How I considered this complaint

8. I considered all the information Mrs Z sent, the notes I made of our telephone conversation and the one I had with Mr Z, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs Z and the Council. I considered their responses.

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What I found

9. Mrs Z has lived in her home for more than 10 years. She received notification from the Council of a planning application to build houses on a nearby field. She sent representations about it. The Council approved the application and building works began.
10. Building works on the site continue but, Mrs Z is unhappy because since construction started, their home flooded twice in August 2019. They saw water running down along the adjacent boundary wall, which they provided a video of, within the site. She says the developer set up temporary drainage into an existing drainage culvert (the culvert). The culvert is on the south-east corner of the site. It used to help drain water from the field and runs under their land and continues downhill to a brook.
11. Although the developer repaired the flood damage done to their outside patio, she is worried it could happen again. She is concerned because a manhole on site was full of water last year, for example, despite a dry spell.
12. Her husband, Mr Z, is also concerned the attenuation tanks shown on the planning application are not used, with water directed in to the old drainage culvert instead. Attenuation tanks temporarily store storm water for a period before releasing it in to a watercourse or sewer using flow controls. This allows a controlled amount of water to flow through the system. The aim is to prevent flooding downstream.
13. In response to my enquiries, the Council explained:

• It had no record of the culvert’s existence at the time of the planning application;
• The developer’s consultant notified it of the culvert after works started which officers then marked on to its records. It could not establish its exact path because it is a stone culvert. Dye tests show it crosses gardens, including Mrs Z’s, and down to a brook near a road;
• The outline drainage strategy was approved;
• A detailed drainage scheme was approved as part of a condition of consent;
• The additional drainage solution it mentioned to the complainant was an additional land drainage but did not have a different outfall at the culvert;
• The culvert is at the site’s lowest point and so would have received land drainage and overland flows before the development;
• The attenuation tanks are used for the surface water drainage;
• There is no connection to the culvert for surface water run-off from roofs, drives, and roads;
• When alerted to the claim about surface water discharging in to the culvert, officers did a dye test. This proved the nearest properties had not connected to it. It got a plan of retaining wall drainage which does not show the use of ‘weep’ holes. A limited amount of ground water could enter the culvert which was much less than before development as surface water run-off from hard standing areas have a controlled discharge;
• Officers found hydro-brakes (these are used to control the flow of water to prevent flooding upstream or downstream) were not connected at the time of their visit but, water was held back due to a makeshift throttle designed to let water out slowly and prevent silt reaching a lower brook. The bottom two plots had surface water connection to the foul drainage system which the developer corrected. None affected the culvert; and
• Officers decided the problem was one of careless site maintenance which allowed construction silt and soil to run down the land drainage system causing blockages. This in turn caused flooding to Mrs Z’s garden. The developer cleared the silt and introduced a monitoring system to reduce the risk of this happening again.

14. The Council told Mr Z the watercourse starts on the site close to their garden wall and appeared to be constructed to take water from overland flows to a brook. Inspection chambers were built for access to newly constructed drainage systems to it, including a silt trap. Retaining walls built usually have some drainage immediately behind them to minimise water pressure. Under common law, the land owner has a right to connect land drainage to this system. Common law is based on judges’ decisions on cases which can, when reached by higher courts, bind future decisions of lower courts.

Analysis

15. It is important to distinguish between: a) land drainage, which includes natural land drainage water (for example, spring water, ground water, or surface water run-off); and b) surface water drainage, which is drainage consisting of rainwater pipes on roofs, surface water drains, and above ground gutters for example.
16. When the Council granted planning consent for the development of the site, it required:

• A Construction Management Plan (CMP) submitting for its approval (condition A). This would include temporary drainage arrangements and details of the disposal of surface water from the development, including methods to manage silt. One of the reasons given for including this condition was to ensure the risk of flooding does not increase during building works and reduce the siltation of any site surface water features. It was a pre-commencement condition to ensure suitable building management measures were agreed at an appropriate stage of development;

The Council received the CMP and various amendments were made to it. The Lead Local Flood Authority (LLFA), Highways and Environmental Health were consulted. The LLFA is a statutory consultee on major planning applications and lead in managing local flood risk, from surface water, ground water, and ordinary watercourses. The Council is the LLFA. Only Highways commented on it. The Council was satisfied it complied with the condition;

• A detailed scheme for the disposal of surface water from the development needed submitting for approval which includes its maintenance (condition B). I have seen the application to discharge this condition. The officer’s report noted the drawings sent by the applicant. It referred to some of the history since consent was granted. This included reference to the LLFA involvement, further drawings sent, the need for further calculations, and the LLFA considering the proposal acceptable. The Council approved the drawings received; and
• Before occupation, full details of the maintenance of all sustainable drainage system features needed submitting for approval (condition C). After consent, the LLFA noted no maintenance and management plan was submitted. The applicant sent a maintenance agreement and with the information sent with condition B, the Council decided to approve the details sent under condition C. This was in late 2018.

17. I found no fault on this complaint because:

• I consider the Council satisfied itself the attenuation tanks were in use. It also satisfied itself, through dye tests, that there is no surface water run-off from the roofs, drives, and roads, in to the culvert near Mrs Z’s house;
• The Council also explained surface water sewerage down a nearby lane, which used an existing highway connection to another culvert, not the one near Mrs Z’s home, meant it would not commit to a connection to the public sewer;
• The potential flow of water in to the culvert near Mrs Z was reduced because drainage for hard-standing areas flowed in to a separate drain;
• There is no information the developer complied with the details supplied to, and agreed by, the Council as required by conditions A and C. These required details of management and maintenance, including dealing with silt as this could obviously block drains;
• Following the flooding of Mrs Z’s property, the Council considered its cause was likely to be careless site management. Put simply, silt and soil had built up affecting drainage contrary to approved details. The Council decided not to take enforcement action against the developer. The Council was entitled to reach this view as taking enforcement action is discretionary and must be proportionate; and
• I have seen an email sent to him which confirmed there would be no recommendation for enforcement action against the developer who is co-operating. The problems causing the flooding had been addressed.

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Final decision

18. I found no fault on Mrs Z’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman