Summary: Mr X complained the Council failed to take enforcement action against alleged planning and building control breaches relating to a nearby development. He says the alleged breaches contributed to flooding in his rear garden. Mr X also complained the Council delayed or failed to respond to his correspondence about this matter. We find fault by the Council and recommend a remedy to address the injustice identified.

The complaint

1. Mr X complained the Council failed to take enforcement action against alleged planning and building control breaches relating to a nearby development. He says the alleged breaches contributed to flooding in his rear garden and a loss of enjoyment of his garden and property. Mr X also complained the Council delayed or failed to respond to his correspondence regarding this matter.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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 discussed the complaint with Mr X and considered the information he provided.
6. I made enquiries to the Council and considered the information it provided.
7. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Enforcement action

8. 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.
9. Government guidance 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)

10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action or not to act at all. 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.
11. The Building Regulations 2010 cover the construction and extension of buildings. The purpose of the regulations is to ensure public safety.
12. Developers are obliged to comply with building regulations and work may be inspected by councils or through contracts with private inspectors.
13. Building regulations contain guidance and indicators of best practice, but enforcement action is discretionary and so it is up to the judgement of Council Building Control Officers whether and how to enforce the regulations. 

The Council’s complaints policy

14. The Council has a two stage complaints procedure. At stage one, the Council says it will respond to the complaint within 15 working days from the date it acknowledged receipt. At stage two, the Council says it will respond within 20 working days from the date it acknowledged receipt. At both stages, if the complaint is complex and the Council needs more time to investigate, the Council says it will inform the complainant.

Background

15. The Council granted planning permission to redevelop a commercial property into four separate residential properties. Mr X’s home is located to the rear of the redevelopment.

Mr X’s complaint

16. This chronology includes key events in this case and does not cover everything that happened.
17. Mr X complained to the Council on 27 December 2020. He said the redevelopment site had been landscaped with ground being raised and sloped to his garden, and that mature trees had been removed. Mr X said building control had signed off an extension that effectively allowed water to run off from multiple roofs to a French drain arrangement to his property. Mr X said that despite him raising concerns about this to the Council, it’s planning and building control departments had not taken any enforcement action.
18. The Council acknowledged Mr X’s complaint on 31 December 2020.
19. In January 2021, the Council’s planning department told Mr X it was liaising with its building control department and environmental protection team about the issues raised.
20. A Council officer from the planning department carried out a site inspection in May 2021. At about the same time, the Council commissioned a report by the environmental protection team (EPT). The report identified several potential reasons for the flooding, which were:
• The properties sewage systems
• Surface water and soakaways
• The removal of trees and vegetation in the area
• The weather
• Soil conditions
21. The Council provided its stage one complaint response on 10 June 2021. It apologised for the time taken to provide a response and said this was largely due to the complexity and breadth of the investigations undertaken regarding the drainage issues. The Council referred to the EPT’s report, the planning applications relating to the development, and the site visit conducted in May 2021. It said the planning officer noted a slight raising of the garden at one of the redeveloped properties immediately to the rear of Mr X’s property, and the installation of a gate which was not shown on the approved plans. The Council said it considered it was not expedient to take enforcement action against these matters.
22. The Council said Mr X’s property lies at the lowest point of the surrounding area, and that its investigations to identify the potential sources of the water ingress to Mr X’s garden were inconclusive as there was no identifiable single cause. The Council said that following legal advice received, it could not take formal action because the issue was a private matter between neighbours.
23. Mr X replied to the Council on 4 August 2021. He said most of the potential sources of water ingress were associated with the development or further permitted development of the site. Mr X said the Council’s description of “a slight raising” of the garden at one of the redeveloped properties was not a true representation of the issue. He said a retaining wall and several mature trees had been removed as well the land being sloped to fall to his property. Mr X said this did not comply with the permitted plans. Mr X said the developer had also modified the drainage systems and the development did not comply with building control drawings. Mr X also complained about delays incurred by the Council in its responses to his correspondence.
24. Mr X contacted the Council in September, October and December 2021 to request a further response to his complaint.
25. On 10 December 2021, Mr X complained to the Council that it had not responded to his complaint response of 4 August 2021. He said he had provided evidence of the planning and building control breaches and that these had caused neighbour disputes and stress.
26. Mr X contacted the Council in February and March 2022 to request a response to his complaint.
27. In March 2022, Mr X brought his complaint to us. We asked the Council if it had completed its complaint investigation. The Council said it was still considering Mr X’s complaint and was due to issue a response.
28. The Council issued its stage two complaint response on 29 March 2022. It apologised for the delay and said this was due to competing work pressures. The Council said it could not take formal building control enforcement action because the works were undertaken more than 24 months before Mr X reported water ingress. It said it was satisfied the conclusions of its stage one response were robust and advised Mr X he could pursue a complaint against the private building control company involved in the redevelopment. The Council did not uphold Mr X’s complaint but acknowledged the delays it had incurred in responding. The Council apologised for this and offered a financial remedy.
29. Mr X remained dissatisfied with the Council’s response and declined the financial remedy. Mr X brought his complaint to us.

Analysis

30. I have exercised discretion in investigating Mr X’s complaint back to December 2020 due to the time taken by the Council to complete its consideration of his complaint.
31. Mr X has commented in detail on the alleged breaches of planning and building control and the Council’s consideration of it. The focus for me is to consider whether there were faults in the Council’s consideration that calls into question the decision reached. I have therefore concentrated my investigation on those claims of fault which have potential to have caused significant injustice.

Planning control enforcement

32. The Council says it reviewed the development on receipt of Mr X’s concerns and carried out a site visit. It says the planning officer made a judgement as a result of the site visit that the breaches of planning control were “technical” and that it was not expedient to take any further action.
33. As stated at paragraph 10, planning enforcement is discretionary. As a result, councils may decide to take formal/informal action or may decide not to act at all. Before taking action, councils must satisfy themselves that such action is the right thing to do, (that it is expedient).
34. In this case, the Council decided not to take action regarding the planning control breaches. This is a decision the Council is entitled to make. However, as part of maintaining an effective and robust administrative process, we would expect councils to keep records to demonstrate how and why it made this decision. This includes copies of the site visit records and/or planning officer’s notes to show the reasons why the Council considered it was not expedient to take action.
35. I acknowledge the Council’s comments that its decision was in line with its Planning Enforcement Strategy. However, without supporting evidence to demonstrate the Council’s rationale, there is no evidence to show how it made this decision. The Council’s Planning and Enforcement Strategy states “transparency is important in maintaining public confidence in the Council’s ability to regulate”. The Council’s lack of records regarding its decision not to take enforcement action is not transparent and therefore contrary to its policy. The Council’s failure to keep these records is fault.

Building control enforcement

36. In its stage 2 response, the Council says local authority building control services are not able to undertake formal enforcement action where a development has been completed for more than 24 months. It says works were undertaken more than 24 months before Mr X reported water inundation and therefore it cannot enforce any breach of the building regulations.
37. The Council commissioned a report by its environmental protection team which said the septic tank may have been filled in and may be acting as a soakaway. The report assumes the soakaways were calculated, designed and installed to hold the rainwater from the development and that the soakaways were signed off by a private building control company. However, Mr X says he has provided a statement from the developer to the Council which says the septic tank was not filled in.
38. I have seen evidence of the legal advice provided to the Council which determined the drainage provisions of the Building Act 1984 did not extend beyond the roof (rain) and foul water. It said general surface water and garden soakaways are not included.
39. The evidence shows the Council considered the allegations of building control breaches and commissioned a report which found there were several potential causes of the flooding. The Council took legal advice and determined it would not take enforcement action as it considered the issue to be a private matter.
40. I acknowledge Mr X strongly disagrees with the Council’s explanation. However, the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision the organisation made. The Council reviewed the matters raised by Mr X but decided it would not take enforcement action. The Council has demonstrated how it made this decision and I therefore do not find fault in this aspect of the complaint.
41. The developer undertaking building work is primarily responsible for the standard of work including any impact on neighbouring properties. The Council says Mr X may pursue a complaint against the private building control company for any allegations of defective works and may also complain to the Construction Industry Council.

Mr X’s complaint of delayed responses

42. There is evidence of delay regarding the complaint process. The Council took six months to provide its stage one response and seven months to provide its stage two response, despite numerous contacts from Mr X.
43. I acknowledge the Council’s explanation for the delays regarding this matter and consider it is positive the Council identified this delay as part of its complaint handling. However, the Council’s complaints policy clearly states the timescales for providing a response. The failure to adhere to these timescales is fault.
44. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr X says the matter has caused him and his wife avoidable stress and sleepless nights.

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Agreed action

45. To address the injustice to Mr X, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X for the fault identified;
2. Make a payment of £300 to Mr X to recognise the distress caused by the delay in responding to his complaint;
3. Make a further payment of £300 to Mr X to recognise the time and trouble taken in bringing his complaint to us;
4. Remind staff to retain records of site visits and notes/records regarding the Council’s consideration of whether it is expedient to take enforcement action, and
5. Remind staff to adhere to complaints policy timescales.

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Final decision

46. I have found fault by the Council causing an injustice to Mr X. The Council has agreed to take the above action to remedy the injustice identified. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman