Summary: Mr X complained the Council delayed taking enforcement action in relation to drainage works linked to a development near his property. The Council was at fault for not taking action sooner. The Council has agreed to remedy Mr X’s injustice.

The complaint

1. Mr X complained the Council delayed taking appropriate enforcement action against a developer for failing to correctly install drainage works.
2. Mr X said the development contributes to localised flooding.
3. Mr X said the flooding prevents him from leaving his house.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have considered Mr X’s complaint and have spoken to him about it.
7. I have also considered the Council’s response to Mr X and to my enquiries.
8. Mr X 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 policy

9. The Council has a planning enforcement policy. This sets out what is considered potential breach of planning control. This includes failing to comply with any condition subject to which planning permission has been granted. The law says that Councils should only take enforcement action when it is satisfied that the proposed action is expedient and proportionate.
10. The Council policy identifies three priority levels that it uses to prioritise reports of alleged planning breaches. Officers have discretion which priority a case is allocated.
11. The Council has a target to achieve an ‘identified action’ in relation to alleged breaches of planning control within 8 weeks of receiving the enquiry. The ‘identified actions’ include:
• identifying no breach and closing the case,
• deciding action is not expedient,
• negotiating with the developer to resolve the breach,
• requesting a planning application,
• issuing a notice, and
• taking legal action.
12. If the Council decides to negotiate with the developer, the policy adds a condition. Negotiations should not be allowed to hamper or delay the consideration of enforcement action where a breach of planning control causes serious harm to amenity.

What happened

13. The Council approved a planning application for a development close to where Mr X lives. The approval was subject to planning conditions including the installation of an outflow pipe. Mr X said, when the developers installed the pipe, they lowered the level of the banks of a nearby brook. He said, the developers did not replace the soil to bring the level of the banks to previous levels.
14. He said the lower bank levels meant the brook overflowed and contributed to the flooding on the road near his house. This, together with existing flood problems, meant the road was blocked and he could not leave his house.
15. Mr X’s neighbour alerted his local councillor, who then reported the alleged breach of the drainage planning condition to the Council in June 2020. In April 2021, when Mr X felt the Council had not taken any action, he reported the suspected breach of planning. He later raised it as a complaint when nothing had been done.
16. The Council allocated the case as a Priority 3; the lowest priority. Mr X questioned the priority level. The Council explained because the road was not flooded when the report was made, it was satisfied the potential breach did not cause significant harm to its surroundings. Mr X said regardless of the priority level, the Council did not visit the site within the allocated time.
17. The Council accepted the developer had not completed the drainage works in line with the planning condition and agreed to pass it through to planning enforcement.
18. In May 2021, the Council contacted the developer and began informal negotiations. Over the following 8 months, emails went back and forth between the Council, Environment Agency and developer regarding measurements, drawings and plans. During this time, there were some personnel changes which appeared to slow down progress. Eventually on 7 January 2022, the parties agreed what exactly needed to be done.
19. During the course of my investigation, the Council confirmed the developer had commenced work to restore the brook’s banks. This was ongoing in April 2022.

My findings

20. It took from June 2020 when the Council were first alerted to the alleged planning breach, until April 2022 for the work to commence. During this time, the Council delayed speaking to the developer until May 2021 despite this being agreed the course of action in October 2020. It then took a further 11 months of negotiations to commence the drainage works.
21. The Council was at fault for delaying taking enforcement action in the first place. It then did not manage the negotiations with the developers to complete the works in a timely manner.
22. Although enforcement policy allows for negotiations between the Council and the developer, it says this should not hamper or delay the consideration of enforcement action where a breach of planning control causes serious harm to amenity.
23. Over the 19 months, Mr X experienced several flood events which were made worse by the incomplete drainage works. The Environment Agency confirmed that the lower land levels contributed to flooding of the highway.
24. The Council was at fault for delayed enforcement action which contributed to local flooding events.

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Agreed action

25. Within 4 weeks of my final decision, the Council has agreed to:
1. Apologise to Mr X for the delayed enforcement action and the impact this had on flooding of the highway outside his property.
2. Pay Mr X £100 for the distress and inconvenience caused by the delayed enforcement action and the impact this had on flooding of the highway outside his property.
3. Pay Mr X £100 for the time and trouble it has taken him to complain.

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Final decision

26. I have completed my investigation. The Council was at fault for delayed enforcement action which caused Mr X the injustice of increased flooding affecting access to his property.

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Investigator's decision on behalf of the Ombudsman