Summary: Mr D complains about the Council’s approval of a drainage scheme for a development next to his home and its actions after he raised concerns about the scheme. We have found no fault.

The complaint

1. Mr D complains about the Council’s approval of a drainage scheme for a development next to his home and its actions after he raised concerns about the scheme. He also complains the Council illegally took photographs of his property and posted these online.
2. Mr D says the drainage scheme is inadequate and as a result there has been flooding and his property has been damaged.

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What I have investigated

3. I have investigated the Council’s actions since November 2019. I explain at the end of this statement why I have not investigated earlier matters.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The Information Commissioner's Office considers complaints about how personal information has been handled. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about this, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. 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

8. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
9. Mr D 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

Planning permission

10. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.

Planning enforcement

11. 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. 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.
12. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. It 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 2021, paragraph 59)
13. It is for the council to decide whether it is expedient to take action. It may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

Background

14. In 2017 the Council granted planning permission for a housing development near Mr D’s home. The development site is on land which slopes down towards Mr D’s property. The approval included a planning condition that controlled drainage. The condition said the development should not proceed until details of the proposed surface water drainage had been approved by the Council and no house should be occupied until all drainage works had been carried out in accordance with the approved plans.
15. In October 2018 the developer provided details of a drainage scheme. For surface water, attenuation storage would be provided in a new pond. A ditch would be excavated from the pond to an existing ditch which would be regraded. The existing ditch would flow to a reservoir which has an overflow to a watercourse that discharges to a pond on Mr D's property. Mr D’s pond has an outflow to a further watercourse. The Council was satisfied with the plans and it discharged the planning condition.
16. In August 2019 Mr D spoke to an officer about his concerns about the drainage plans; he said he had not been consulted on them. The Council wrote to Mr D explaining it had not sent him a notification letter for the original planning application as his property was not directly adjacent to the development site. There was no public consultation on applications to discharge planning conditions. The Council said the development site had “the natural right to discharge surface water to the ditches/watercourses that serve the site. This means that water will discharge this way whether there is development here or not. The surface water discharge from the attenuation system has been carefully designed and restricted … [so] … that the rate of flow [to Mr D’s pond] should be no greater than the existing arrangement.”
17. Mr D replied that he disputed this; the existing ditches had not been regraded, water from the attenuation pond would not flow to the reservoir but overflow towards his land, and the flow rate would increase. The Council noted Mr D’s concerns but said the development was being carried out lawfully and there was no breach of planning control. The Council therefore could take no action.

Mr D’s complaint

18. Mr D wrote to the Council on 13 November 2019 to say that the new attenuation pond had breached its banks and there was flooding on his land. He said the new ditch from the attenuation pond hit a dead end and water therefore overflowed on to his property. The Council did not reply. In response to my enquiries it said it had considered the problems with water on Mr D’s land were historic and not made worse by the new development.
19. Mr D made a formal complaint on 13 December that the Council had not responded and that planning permission had been granted without him being able to object and without there being correct provision for the discharge of surface water.
20. The Councill’s response apologised it had not replied to Mr D’s letter in November 2019. The Council would visit the site to check that the approved drainage was functioning properly.

Enforcement 2020 to 2021

21. The Council visited the development site in January 2020. It found construction of the drainage works and the development was ongoing. There was therefore no breach of planning control.
22. The Council visited again in February 2020. It also met Mr D and visited his land. The Council found that the attenuation pond had the wrong dimensions with insufficient capacity and the existing drainage ditches had not been improved. A breach of planning control was therefore likely to occur if the drainage works were not completed before the properties were occupied.
23. In August 2020 some of the new houses were occupied. The Council again visited the site. It found that no further works had been carried out on the drainage scheme, so there had been a breach of planning control as the drainage was not in line with the approved plans.
24. The Council wrote to the developer requiring remedial works to be undertaken. It wrote to Mr D in October 2020 to explain it had asked the developer to fix the drainage. The Council said Mr D should seek legal advice if the developer had caused damage to his property.
25. In March 2021, Mr D wrote to the Council again setting out his concerns about the drainage scheme and the flooding of his property. He complained the Council had not visited his property until five months after he raised concerns, had initially denied there was a problem, and had only discovered the planning breach due to his insistence. He said the developer had failed to fix the drainage but the houses were being occupied and that it had dug trenches and caused damage in an area of outstanding natural beauty. Mr D also complained that photographs of his property had been taken illegally and posted on the Council’s website.
26. The Council visited the site again on 30 March. It found remedial works and improvements had been made and there was no longer a breach of planning control. It wrote to Mr D on 18 May that the drainage works now complied. Mr D complained to the Ombudsman in August 2021.

My findings

27. As I have explained at the end of this statement, I have not investigated the Council’s approval of the planning permission in 2017 or its discharge of the drainage condition in 2018. I have considered the Council’s actions in relation to enforcement after Mr D raised concerns in November 2019.
28. When a council receives a complaint about unauthorised development, it has a duty to investigate. If a breach of planning control is found, the council's next duty is to take a view on whether it needs to do something about it or not.
29. Mr D told the Council in November 2019 that the attenuation pond had flooded. The Council did not to reply or visit the site. However, even if it had visited the site then, it would not have found a breach of planning control as construction was still ongoing and the new homes were not yet occupied. I am satisfied therefore that the Council’s apology in December 2019 for not replying to his letter is a sufficient remedy for any injustice caused.
30. When the Council visited in January 2020 it found the pond was not built in accordance with the plans. However, at that stage the houses were not occupied. There was therefore no breach of planning control as the planning condition stated the drainage works had to be completed before any dwellings were occupied. It was therefore not possible for the Council to take any enforcement action. While a council may visit a development site at various stages, it does not act as a clerk of works and the responsibility for compliance with the planning condition rests with the developer. There was therefore no fault by the Council in not taking further action.
31. When the houses became occupied, the Council re-visited in August 2020 and found the drainage had not been improved. There was therefore a breach and the Council had to determine its next steps. It decided to ask the developer to take action to ensure the drainage was in line with the plans.
32. Councils are not required to take formal enforcement action; they are entitled to decide that informal actions – such as asking the developer to complete the works – are sufficient. The Council followed the process we would expect and I have seen no fault in its decision to ask the developer to complete the works. The Ombudsman cannot question the Council’s decision where there is no evidence of procedural fault.
33. In response to my draft decision statement, Mr D said the drainage works were not completed until September 2021. However I have seen evidence from the Council that its visit in March 2021 found that the remedial works that had been done meant the drainage complied with the plans. I appreciate this is some months after the breach was identified but I have seen no evidence of drift or delay by the Council so I do not find fault.
34. Mr D is concerned that the drainage is insufficient and causing flooding of his property. A grant of planning permission does not allow developers to cause damage to a person’s land. The issues Mr D raises about damage to his property are not matters the Council is responsible for; they are civil matters between Mr D and the developer. Mr D may take civil action against the developer if he wishes as it is for the courts rather than the Ombudsman to decide if the developer is liable for damage to his property.
35. Mr D was concerned about photographs of his home being on the Council’s website and that these had been taken illegally by someone on his property without his knowledge. In response to my enquiries the Council said it had not taken these photographs or requested them.
36. In relation to Mr D’s complaint that the photographs are on the Council’s website. We normally consider it reasonable for a person to refer concerns about the use of personal information to the Information Commissioner. The definition of personal information used by the Commissioner is “information relating to a person who can be identified, directly or indirectly, from that information”. I consider it unlikely, therefore, that photographs of Mr D’s house would be considered personal data. I find there was no fault by the Council in publishing the planning documents which included the photographs online.
37. I have seen no evidence the Council went on to Mr D’s property illegally. In addition, trespass is primarily a civil matter which Mr D would need to pursue through the courts.

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Final decision

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

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Parts of the complaint that I did not investigate

39. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I am therefore not investigating the granting of planning permission in 2017 and the discharge of conditions in 2018, as Mr D could have complained about these at the time.

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Investigator's decision on behalf of the Ombudsman