Summary: There was no fault by the Council. It properly considered whether a new house on a plot adjoining Mr B’s home had been built in accordance with the planning permission. It also properly considered the sloping site and the potential impact on flooding. The Council could have communicated Mr B better in its complaint handling so that it could understand and address his concerns. This caused Mr B frustration but did not alter the outcome of his complaint.

The complaint

1. Mr B complains that the Council failed to:
• Properly consider the impact on his property in terms of increased risk of flooding and damage from surface water run-off, when it granted permission for a new development next to his home; and
• Properly consider and respond to his complaint about this.
2. Mr B says that the developer raised the ground level on the site. He says that as a result of the Council’s shortcomings, the new ground level is above his (already raised) damp proof course and there is a significant risk of damage to his property from surface water running off the higher ground.

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The Ombudsman’s role and powers

3. 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)
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 considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its planning documents. Both parties have commented on a draft of this statement and I have taken the comments into account before issuing my final decision.

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What I found

What happened

6. The Council approved a development of four houses on a site neighbouring Mr B’s property. Mr B lives on a hill and the site is higher than the ground levels of his property. The Council’s planning report sets out its reasons for granting planning permission. It says, ‘There is a fall in levels across the site in a southerly direction towards [Mr B’s property].’
7. The Council’s planning policy requires that development proposals demonstrate that they would not create or exacerbate flooding. The council attached a condition that surface water drainage details be submitted for approval and for the agreed scheme to be implemented prior to the construction of the foundations.
8. The Council granted permission in Summer 2019 and discharged the condition about drainage the following year. In discharging the condition, the Council sought the advice of its specialist drainage engineers, who first rejected the drainage scheme because it did not adequately show how it would cope with flood conditions. The applicant submitted an amended scheme, which the drainage engineers approved.
9. In August 2020, Mr B realised that the ground level on the site was higher than the damp proof course of his property. He says he had already installed higher damp proofing because the sloping land, but that the developer had raised the ground levels even higher meaning that his damp proofing might not be effective. Mr B contacted the Council.
10. It first referred him to its building control contractor. The contractor referred the matter to the Council’s planning team. In September, a planning officer telephoned Mr B and told him that the Council had visited the site, and decided the ground levels had not been raised.
11. Mr B told the Council this was not possible as the ground level was now higher than his damp proofing when it had not been previously. The planning officer suggests Mr B contact the planning enforcement team.
12. At the beginning of October, Mr B did this and asked why the new property is at a level higher than his damp course, this being indicative of the existing ground levels prior to the development. The Council replied that the approved plans show that the plot will be higher than Mr B’s plot. Mr B clarified with the Council that he understood the plot was higher than his, it always had been, but now it was even higher than his damp proof course and he wanted to know why this had been allowed.
13. The Council asked the developer for the finished floor levels. The Council gave these to Mr B. He asked the Council to explain this and again asked why the ground levels of the new property were higher than the damp proof course of his property.
14. The Council responded that it was built in accordance with the plans. Mr B contacted the Council again and it asked for precise details of his complaint. Mr B says, ‘this caused me a great deal of frustration as I had boiled down my concerns into one single, simple question that had been asked of both parties previously and they were still asking me what I wanted’. However, Mr B clarified that he wanted to know why the Council had allowed the ground level of the new house to be above his damp proof course.
15. The Council again said that the new house was built in accordance with the plans and was supposed to be higher than his ground levels. Mr B again said he knew this, but why was it even higher and so, above his damp proof course.
16. Mr B had pursued this with the Council since August 2020 and it was now November, without a satisfactory explanation. Mr B complained to the Ombudsman.

Analysis

17. I can understand Mr B’s concerns about ground levels on this sloping site, and its potential impact on drainage and flooding. The Council investigated Mr B’s concerns and found that there is no breach of planning permission; the levels on the site are as the approved plans. There is no fault in how the Council arrived at this decision.
18. This being the case, I have looked at whether the Council properly considered the planning application, specifically in terms of the site levels and the impact on flooding. The plans clearly show the site levels and the house is built in accordance with these. The Council understood that the land sloped towards Mr B’s property, and that the houses stepped down in line with that.
19. The Council considered the impact of this on flooding in accordance with its policy, and it attached an appropriate planning condition. The Council properly considered the drainage arrangements, on the advice of the drainage engineers, and satisfied itself that these are adequate. The Council relied on its professional advice to limit the potential impact on flooding. It is not required to make sure that a development does not impact on Mr B’s damp proofing. There was not fault in how the Council decided the planning permission.
20. In terms of the complaint handling, I can see that this was frustrating. The Council could have handled this better. I would have expected the Council to telephone or meet with Mr B, (subject to COVID-19 lockdown considerations), if it needed to clarify his concerns. Instead, the Council repeatedly asked him to clarify the issue and then failed to address this. Although this was certainly frustrating, the injustice to Mr B is limited because there was no fault in the Council’s handling of the planning issues. I would, however, urge the Council to reflect on how it might clearly establish the complaint being made in such a case.

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Final decision

21. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman