Summary: Mrs Y said that development caused her land to flood and complained about the Council’s planning enforcement investigations into the development and its use of an unenforceable planning condition. We found no fault in how the Council dealt with Mrs Y’s complaints.

The complaint

1. Mr X, for Mrs Y, complained about the Council placing an unenforceable condition on a planning permission (‘Condition W’), which resulted in significant flooding on the development site and nearby land. Mr X said Condition W was not enforceable because it did not say when works (‘the Works’) should be completed and so was imprecise. Mr X also said the Council was wrong to fully discharge Condition W.
2. Mr X also complained about the Council’s planning enforcement investigations into the development. Mr X said the first investigation into Condition W took too long and was inadequate as it failed to identify the breach of another planning condition (‘Condition M’), linked to the incomplete Works and flooding.
3. Mrs Y’s land had been flooded, which seriously affected her quality of life and caused stress and anxiety. Mr X wanted the Council to apologise for using an imprecise planning condition, that is, Condition W. Mr X also wanted the Council to either stop any future flooding on the development site affecting Mrs X’s land or provide financial redress.

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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 consider whether there was fault in the way a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. Where we find fault, we must also consider whether that 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)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. 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)
8. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Here, Mrs Y gave her written consent for Mr X to act for her in making this complaint.
9. 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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What I have and have not investigated

10. In his complaint correspondence with the Council, Mr X questioned the Council’s decision to approve the scheme of Works under Condition W. The scheme for the Works linked to Mr X’s complaint about the enforceability of Condition W and the Council’s first enforcement investigation. I therefore considered the scheme of Works to provide context for Mr X’s complaints as set out at paragraphs 1 and 2 of this statement.
11. However, I did not investigate the Council’s decision making in approving the scheme of Works. The Council made that decision several years ago and its decision letter approving the scheme for the Works was published on its website. If Mrs Y knew of the decision when it was made, a complaint now about that decision would be a late complaint (see paragraph 7). And I saw no good reason now to investigate a late complaint about that decision.
12. But Mrs Y, through Mr X’s correspondence with the Council, might only recently have become aware of the Council’s decision to approve the scheme for the Works. If so, the complaint would not be ‘late’. However, the Council’s decision was not recent and most of the Works were in place and used on the site. So, any investigation now could not achieve any meaningful or worthwhile outcome for Mrs Y (see paragraph 6). I therefore investigated how the Council reached its two planning enforcement decisions, which included consideration of Condition W.

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How I considered this complaint

13. I have:

• considered the written complaint made by Mr X and his supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

Development management

14. Most development needs planning permission from the local council. When granting permission councils may impose planning conditions to make the development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum. And councils should only impose conditions where they are necessary, relevant to both planning and the development, precise, enforceable, and otherwise reasonable (‘the six tests’). The Government’s Planning Practice Guidance (PPG) reflects the NPPF and says it is “good practice” to keep conditions to a minimum wherever possible. And conditions saying a development should be completed would fail the necessity test.
15. Planning conditions may say a developer must give the council details and or a scheme of works for its approval. For example, a development may include site landscaping. And a condition on the planning permission may say the developer must provide a scheme detailing the trees, shrubs, and any paths on the landscaped area/s. When councils approve such schemes, this is often said to ‘discharge’ the relevant planning condition.
16. The PPG covers conditions about developer’s providing further details of schemes and works after the grant of planning permission. It says councils should not use conditions that unnecessarily affect a developer’s ability to implement a planning permission or bring development into use or occupation.

Planning enforcement

17. Development without the necessary planning permission or that does not comply with a permission and its conditions, will be a breach of planning control. Councils should investigate reported breaches. But enforcement action is discretionary so, if they find a breach, councils may decide to take informal action or not act at all.

18. The NPPF says councils should act proportionately in responding to suspected breaches. When deciding whether to enforce, councils should consider the likely impact of harm to the public. They should also consider whether, if receiving a planning application, they might give the unauthorised development planning permission.

19. The Council has a Corporate Enforcement Policy covering its enforcement powers and duties that refers to ‘proportionality’ (‘the Policy’). The Council also has Planning Enforcement Service Standards and Policies (‘the Service Standards’) that complement the Policy. The Service Standards refer to the Council prioritising reported breaches and then possibly making a site visit to initially assess if there is breach of planning control. In prioritising cases, the Service Standards say the Council will carry out a risk assessment leading to a priority score for each alleged breach. The resulting score determines the timescale for carrying out any necessary site visit.
20. After any site visit, the Service Standards say the Council will contact the person reporting the possible breach and the developer/landowner. Both parties will be told whether the Council has found a breach and, if so, what action will follow. If the Council finds a breach, the Service Standards say further scoring takes place to decide whether enforcement action is appropriate, proportional and in the public interest. The Service Standards say the Council will first try to resolve all breaches through negotiation. A developer/landowner only gets one opportunity to remedy a ‘high priority’ breach before the Council considers enforcement action. And a developer/landowner will be encouraged to negotiate a remedy for a ‘medium priority’ case. A ‘low priority’ case will not warrant further action. The Service Standards say the Council will act proportionately and apply an ‘expediency test’ before taking formal enforcement action.

Summary of what happened

21. The Council granted planning permission, which included Conditions W and M, for development near Mrs Y’s land. Condition W said the developer had to get the Council’s approval to a scheme of work, the Works, and then carry out the development in line with the approved Works. Condition M said the developer had to put measures in place (‘the Measures’) before occupation of each part of the development. There was a link between the Works and the Measures.
22. The Council’s records showed it approved a scheme of works under Condition W. Information about the approved Works was published on the Council’s website. Development started on the site.
23. A few years later, Mrs Y’s land flooded and she contacted the Council about a breach of Condition W. The Council opened a planning enforcement case and considered information it held about the development. It scored the case as a low priority. A Council enforcement officer visited the development site. The notes of the site visit showed the officer viewed the Measures and considered the Works that overlapped with the Measures might be incomplete. The enforcement officer also spoke to Council building control and drainage officers. The Council’s drainage officers referred to recent heavy rainfall, which had led to many complaints about flooding across the district. The Council’s building control officers said they had inspected the existing, part complete, Works and found them acceptable. The enforcement officer found, under Condition W, the Works needed to be fully in place when the development was complete, which it was not. So, there was no breach of Condition W.
24. About a month after opening the enforcement case, the Council’s enforcement officer spoke to Mr and Mrs X, for Mrs Y. The enforcement officer explained there was no breach of Condition W and referred to recent heavy rainfall as a cause of local flooding.
25. Mr and Mrs X, for Mrs Y, were not satisfied with the enforcement decision. Mr X told the Council it should not have approved the scheme for the Works. Mr X also said the Council should not have discharged Condition W while the Works were incomplete. Mr X disputed the Council’s view that local flooding arose from recent heavy rainfall.
26. The Council wrote to Mr X explaining its enforcement decision and saying it had opened a second planning enforcement case. The second case concerned a breach of Condition M. The Council also initially told Mr X the Works that overlapped with the Measures were not complete. And, once complete, this might mitigate standing surface water on the development site. The Council confirmed there was no breach of Condition W and said it could not evidence that conditions on the site caused the recent flooding on Mrs Y’s land.
27. In carrying out its second enforcement investigation, the Council scored the case as a medium priority and made further site visits. The Council’s notes of its first visit for the second investigation included that it found no evidence that Works overlapping with the existing Measures were not in place. The notes also said it would further check the overlapping Works. The Council officer that had approved the scheme for the Works had left the Council’s employment. And the Council found the person that had submitted the scheme no longer worked for the developer’s agent. So the Council did not speak to the people that had submitted and approved the scheme for the Works. The Council’s notes showed it carried out land ownership searches, considered its retained records and spoke to and met with the developer, and spoke to the developer’s agent. The Council also spoke to, and met on site with, the developer’s contractor that had carried out the partially complete Measures and overlapping Works.
28. The Council’s checks also led it to contact a third-party about a possible cause of the localised flooding. The Council asked the third-party to carry out maintenance works on its land. (During my investigation, the third-party said it had not maintained its land due to bad weather. And maintenance work would help with localised flooding but excessive rainfall over short periods was causing general problems for drainage systems.)
29. To put right the breach of Condition M, the Council negotiated a timescale with the developer for completion of the necessary Measures.
30. Meanwhile, Mr X continued to contact the Council disagreeing with its enforcement decision about Condition W and making formal complaints. The Council responded to Mr X’s contacts, kept him informed about its second enforcement investigation and responded to his formal complaints.
31. The Council also continued to deal with the development site. Its case notes showed it made further site visits during heavy rainfall. It found no evidence the incomplete Measures caused flooding although there was standing water on part of the site. The Council’s notes said it considered completion of the Measures would deal with the standing water. The notes also said the Council found surface water draining slowly from the third party’s land. This surface water seemed to gather and cause flooding on other peoples’ land, including the development site. The Council’s notes showed it concluded flooding on Mrs Y’s land was not solely due to the development site.
32. During my investigation the third party maintained its land and the developer completed the Measures before the agreed deadline. The Council then inspected the site with the developer’s contractor. The Council found ‘de minimis’ (too small to have any impact) differences between the approved Works and those on site. The Council also wrote to Mr X to update him about completion of the Measures and linked Works.

Consideration

Introduction

33. The Ombudsman is not an appeal body. This means we do not take a second look at a Council decision to decide if it was wrong or ask if the Council could have done things differently or better. Instead, we look at the processes the Council 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 it.
34. Here, Mrs Y’s complaint concerned the Council allegedly imposing an unenforceable planning condition on development near her land. This complaint arose after Mrs Y contacted the Council about flooding on her land, which led it to carry out two enforcement investigations. Mr X, for Mrs Y, also complained about those enforcement investigations. These events resulted in extensive correspondence between Mr X and the Council.
35. I carefully considered all relevant information provided by Mr X and the Council. However, as a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every question a complainant may have about what the Council did or arbitrate on the party’s different views. So this statement does not, and does not need to, address or resolve every detailed point and issue raised in Mr X’s correspondence with the Council. My investigation focused on whether there was evidence of fault having potential to cause significant injustice in the Council’s enforcement decision making, including consideration of Condition W.

Condition W

36. Mr X, for Mrs Y, said the Council used an unenforceable condition, Condition W, which led to flooding on Mrs Y’s land. Mr X said Condition W was not enforceable because it did not specify when the Works should be completed. This meant Condition W was imprecise.
37. The Council said Condition W was enforceable. The Works would naturally take place as the development progressed. So, it was not necessary for Condition W to seek completion of the Works before starting construction work or first occupying the development. Placing such a time limit on Condition W would have been ‘unreasonable’. The reason it had not taken enforcement action was because there was no breach of Condition W. The relevant part of the Works were in place for that part of the development now built.
38. There was no dispute Condition W did not give a time for completing the Works. However, the evidence showed the part of the Works needed to service the partially built development were in place. And I had no reason to doubt the Council could enforce Condition W should the remaining Works be outstanding after completion of all the new buildings. So, I did not find the Council at fault in its wording of Condition W.
39. Mr X also said the Council was wrong to fully discharge Condition W before completion of the Works on the site. The Council said Condition W was a two-part condition. The developer needed its approval to a scheme for the Works and then had to carry out the approved scheme. The developer had ‘discharged’ the first part of Condition W in securing its approval to a scheme for the Works. The second part of Condition W would be ‘discharged’ on completion of the Works.
40. I recognised the Council’s written references to ‘discharging’ Condition W might be unclear. However, the Council did, in part, ‘discharge’ Condition W in approving a scheme for the Works. But Condition W remained enforceable until completion of the development, including the Works. The evidence showed the Council explained to Mr X that Condition W had two parts, approving a scheme and carrying out the approved scheme. I did not find fault here by the Council and, were I to do so, I would find no resulting significant injustice to Mrs Y.

The Council’s enforcement investigations

41. Mr X, for Mrs Y, complained about the Council’s planning enforcement investigations. Mr X said the first investigation took too long and was inadequate as it failed to identify the breach of Condition M. Mr X also said it was unacceptable for the Council to take four months to agree a timescale for dealing with the breach of Condition M.
42. The Council said its enforcement investigations were in line with the Policy and the Service Standards and there had been no unnecessary delay. It had quickly identified there was no breach of Condition W and explained its decision to Mr X. It had negotiated with the developer about completing the Measures to resolve the breach of Condition M. And, once involved, it had kept Mr X updated.
43. The evidence showed that on receiving Mrs Y’s report of an alleged breach of Condition W, the Council’s assessment gave the case a ‘low’ priority score. This meant the Council should visit the development site within 15 working days. The Council also considered the relevant permission and other planning information and carried out internet research on the site. The Council’s enforcement officer liaised with colleagues, including those that dealt with works like the Works. The officer also considered Council files about the development. The evidence also showed the enforcement officer visited the site within 15 working days. The steps taken by the Council were those I would expect a council to take in responding to such a reported breach of a planning condition. The steps were also in line with the Policy and Service Standards. I therefore saw no evidence of avoidable delay or other fault in how the Council investigated the breach reported by Mrs Y.
44. About a month after opening the first enforcement case, the Council spoke to Mrs X, for Mrs Y. The Council explained there was no breach of Condition W and it would close the case. The Council also told Mrs X why it did not consider flooding on Mrs Y’s land was caused by the partially completed Works. Having found no fault in how the Council investigated the reported breach, I could not question its resulting decision (see paragraph 4).
45. Mr X then started writing to the Council, including making formal complaints. The Council reviewed the first enforcement case and its decision. And, in responding to Mr X’s communications, the Council confirmed and further explained its first enforcement decision. These were appropriate steps to take given Mr X’s correspondence.
46. The Council then opened a second enforcement investigation into a breach of Condition M. This took place about a month after the Council told Mrs X, for Mrs Y, of its first enforcement decision. The Council said, resources permitting, it would consider all conditions when investigating a reported breach of condition on a planning permission. That did not happen here. However, I saw no evidence the extra month taken by the Council to open an investigation into a breach of Condition M substantively affected overall events or caused Mrs Y any significant personal injustice. I therefore found no fault causing injustice here.
47. The steps taken by the Council during its second enforcement investigation are summarised at paragraphs 27 to 29 and 31 of this statement. And during the second investigation, the Council responded to Mr X’s correspondence (see paragraph 30). Again, the steps taken by the Council were those I would expect a council to take given the breach under investigation. The steps taken were also in line with the Policy and Service Standards.
48. The evidence showed the Council both initially scored the case and reviewed the score following a site visit, which visit met the scored timescale. Both scores led to the case receiving a ‘medium’ priority. The evidence showed that during the first site visit a local resident told the Council the Works linked to the Measures were in place. The Council’s notes of the visit showed it decided to check the resident’s information. This led the Council to check ownership of the site and then to contact the developer and the developer’s agent and contractor (see paragraph 27).
49. The Council’s site visit also led it to contact the third party about maintenance of their nearby land, which it considered contributed to recent local flood events. The evidence showed the Council made further visits, including during heavy rainfall, and met on site with the developer and the developer’s contractor. The evidence also showed the Council liaised with its specialist officer about the Works linked to the Measures and inspected them on site. The Council found the Works linked to the Measures were in place and in line with the approved scheme. The action taken by the Council provided an appropriate and proportionate response to the breach of Condition M and consideration of the linked part of the Works. I found no evidence of fault in how the Council investigated the breach of Condition M and the linked Works.
50. The evidence showed the Council found the failure to comply with Condition M had not caused the recent flooding. The Council, having met on site with the developer, agreed a timescale for carrying out the Measures needed to comply with Condition M. A negotiated, informal, resolution to the breach of Condition M was in line with the Service Standards. The timescale agreed for resolving the breach gave the developer about three months to complete the outstanding Measures. And, the overall timescale was about five months from opening the Council’s second enforcement investigation. This was a long time. However, the Council had to investigate the breach and negotiate with the developer. And to complete the Measures, the developer would need to order materials and arrange a contractor to complete the Measures on site. So while resolving the breach of Condition M took several months, I found no evidence of avoidable delay or other fault by the Council in what happened.
51. The Council also responded to Mr X’s emails during the second enforcement investigation. And, later, told him the breach of Condition M would be resolved informally by the developer completing the necessary Measures within an agreed timescale. Having properly and proportionately investigated the breach, the Council was entitled to reach this decision. I recognised Mr X was dissatisfied with the Council’s decision. However, without evidence of fault in how the Council investigated the breach of Condition M, I could not question its decision (see paragraph 4).
52. During my investigation the developer completed the necessary Measures on site. Completion took place about four months after the start of the Council’s second enforcement investigation. The Council then acted correctly in visiting the site to check and verify developer had resolved the breach and informing Mr X of the outcome.

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Final decision

53. I completed my investigation finding no fault by the Council.

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Investigator's decision on behalf of the Ombudsman