Summary: Mr X complained development on neighbouring land causes flooding to his garden. We found no fault in the Council’s consideration of neighbouring drainage and landscaping plans, or their impact on Mr X. However, the Council was at fault for significant delays investigating Mr X’s planning enforcement complaints.

The complaint

1. Mr X complained development on neighbouring land causes flooding to his garden.
2. Mr X said the new development does not have adequate drainage or provision for disposal of surface water. The water now flows downwards into his garden.
3. Mr X said the planning applicant (the applicant) failed to comply with planning conditions requiring an agreed scheme for adequate drainage. He said the applicant made material changes to their drainage plans from what was originally agreed, but the Council did not reconsult residents or require a new planning application.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

Back to top

How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
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.

Back to top

What I found

Planning enforcement

9. 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.
10. 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.
11. As planning enforcement action is discretionary, councils 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.
12. 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 September 2023, paragraph 59)

Land drainage

13. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
14. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to neighbouring land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals. Remedies for these matters are available in the civil courts and tribunals.

What happened

15. I have summarised below some key events leading to Mr X’s complaint.
16. Mr X reported a breach of planning control to the Council in April 2023. He said a neighbour may have erected a structure over a watercourse, rather than next to it as planned.
17. The Council contacted Mr X in May 2023 confirming it would open a new investigation.
18. The Council liaised with the applicant in June 2023. It found the applicant consulted the Environment Agency, who gave the view there was little flood risk from the watercourse. The Environment Agency said it is a minor watercourse, making it the responsibility of the local flood authority, in this case the County Council.
19. Mr X complained to the Council in August 2023. He said a neighbour diverted a watercourse, raising its level, and it no longer has capacity for the volume of water that flows. He said this is contrary to the plans for the development, and the excess water floods his property. Mr X said he raised this with the Council in April but the service received was not acceptable.
20. In late August 2023, the County Council told the Council it visited the site following a complaint about the watercourse. It said the Council normally consults it over major developments and this watercourse may not have met the threshold.
21. In its stage one complaint response in September 2023, the Council recognised the significant delay registering Mr X’s enforcement complaint for investigation. It blamed an internal misunderstanding, staffing resources, and a high volume of cases. It also accepted it did not tell Mr X when it opened a new case file, or who the case officer was.
22. The Council said it visited the application site in July 2023. It found the applicant diverted the watercourse in a small series of channels around an intended structure.
23. The Council also said the applicant did need planning permission for works to a watercourse. The Council said it consulted the County Council, as relevant flood authority, but the County Council referred the matter back to the Council’s own drainage officers.
24. The Council wrote to Mr X towards the end of September 2023. It said it visited the development site but found no breach of planning control. It said the applicant did not block the watercourse and it still runs naturally.
25. Mr X asked the Council to consider his complaint at stage two of its complaint process.
26. The Council’s stage two response confirms an officer met Mr X at his home to understand the issue and view the development plans with him. The Council said:
• Its decision on discharging conditions about drainage and landscaping was a split decision. Drainage plans were acceptable but landscaping plans were unacceptable.
• Landscaping plans were unacceptable because there were too many trees planted too close together. The Council did not base its decision on the applicant channelling the watercourse around the structure.
• It considered the channelling works as part of the hard landscaping, because they are ornamental in nature.
• The reason it refused to discharge the landscaping condition does not directly relate to the issue of flooding Mr X experienced. However, this was now a material consideration and is something compliance officers should have examined.
• It would re-open the enforcement case to informally negotiate with the applicant as part of a revised landscaping submission.
• If it cannot resolve matters informally, it would not continue formal enforcement action. This is because the planning permission granted does not assume an ongoing static residential garden environment. It is reasonable to assume householders, over time, will alter the layout and planting, and use of the garden to suit their needs. Plus, the area of flooding is localised to a small corner of Mr X’s garden, and the drainage layout the applicant built delivers the water runoff planned.
27. The Council apologised for poor communication and poor investigation of Mr X’s complaint.

My investigation

28. Mr X told me the applicant erected a large structure, blocking a watercourse. He said there are no means for surface water discharge from the structure. Flooding therefore occurs after a downpour.
29. The Council told me it is evident from the approved plans, and its site visit, the applicant diverted the watercourse in channels around a proposed structure. It also said surface water drainage works will collect water from the new structure and pipe it through a control system.
30. The Council understands the applicant worked out the cause of the drainage issue affecting Mr X. Water running off the main structure in heavy rain is building up and running across the boundary. The applicant told the Council once they finish the drainage this will no longer happen.
31. The Council also told me the details the applicant gave for a planning condition on surface water drainage and foul water drainage are acceptable. The applicant has not yet fully completed surface water drainage, but will once the development is complete.
32. The Council said its enforcement investigation has not yet finished. However, none of the planning conditions need the applicant to complete the scheme within a specific timeframe, which makes enforcing breaches difficult. The Council confirmed it considers the scheme will be acceptable if installed as planned.
33. The Council told me it will write to the applicant asking for formal details to discharge the landscaping condition. However, the details the applicant gave informally are acceptable, so the Council is unlikely to take formal enforcement action.
34. The Council said Mr X’s complaint highlighted the need for clearer step by step processes, so officers know to add and update files during investigations, rather than at the end.
35. The Council accepts a lack of communication and not bringing matters to a resolution will have caused Mr X some distress. However, the Council does not consider Mr X has suffered significant harm from the new development.

Analysis

36. When the Council granted planning permission for the development, the applicant’s final approved plans show a structure with the watercourse running behind. There were no detailed drainage or landscaping plans at that stage, the applicant had to provide these plans later to discharge conditions attached to the planning permission.
37. The subsequent landscaping plans show water channels in front of the structure. There are trees shown directly behind the structure, obscuring view of the watercourse. I can therefore appreciate why Mr X thought the applicant moved the structure back and covered the watercourse.
38. However, the Council confirmed the structure is in the same location. Instead, as part of the landscaping plans, the applicant decided to re-channel the watercourse around the structure to create a water feature.
39. The applicant has therefore not changed the original plans, or asked the Council for permission to change the plans. Rather, they gave more specific information when applying to discharge planning conditions.
40. The Council spoke to the County Council about the applicant’s plans to re-channel the watercourse. According to the Council, the County Council said it does not deal with small applications and the Council should instead consult its own drainage officers. This advice came from a telephone conversation which the Council does not have a record of. While I do not consider the Council was at fault, as it was not strictly consultation, it would be good practice for the Council to record such advice. This is for reasons of completeness and to help complaint investigations. However, on balance, I am satisfied the conversation took place, as the Council told Mr X about it around the relevant time, when it responded to his complaint. Also, an email from the County Council suggests the watercourse in this case would not meet the threshold for its involvement.
41. The Council did consult its drainage officers. They first asked for more information from the applicant, before agreeing the drainage plans were acceptable. The Council has not formally discharged the planning condition about drainage because the applicant started the work before getting the Council’s approval. While this is technically a breach of planning control, the Council does not consider formal enforcement would be suitable. It is satisfied the plans are acceptable and it would have approved them if the applicant applied before starting the work. There was no fault in the Council’s decision making on the drainage and landscaping plans.
42. It is the role of qualified planning officers to decide whether, in their professional judgement, Mr X suffered significant harm, in planning terms, because of the applicant’s drainage and landscaping scheme. It is my role to consider whether officers properly assessed the situation.
43. The Council visited the development site. It found the applicant channelled the watercourse, along the same course, around the structure. It considered the drainage in place was adequate and saw no evidence of water overflow. The Council also considered Mr X’s photographic evidence of the flooding and observed the situation from Mr X’s land.
44. I am therefore satisfied the Council took suitable steps to assess the impact. The Council considers the harm is not significant, and only affects a section of Mr X’s land. It is satisfied the applicant’s drainage scheme is adequate and will comply with plans once complete. There was no fault in the Council’s assessment.
45. There have been delays deciding Mr X’s enforcement complaint. After first closing the complaint, the Council re-opened it after Mr X’s formal complaint. That was in around September 2023, but the Council has not resolved matters. While I appreciate the officer handling the matter has been on leave, and the case needs a senior officer, it is a significant delay and is fault.

Back to top

Agreed action

46. Within four weeks of my final decision, the Council agreed to apologise to Mr X for its long delays handling his planning enforcement complaint.
47. The apology should come from someone in a position of seniority and should recognise the impact the Council’s delays have had on Mr X. It should also explain the service improvements the Council has made and what steps it will take to conclude matters.
48. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

49. I completed my investigation. I found no fault in the Council’s consideration of neighbouring drainage and landscaping plans, or their impact on Mr X. However, the Council was at fault for significant delays investigating Mr X’s planning enforcement complaints.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman