Summary: We will not investigate this complaint about the Council granting planning permission for a residential development which the complainant says causes flooding on her property. It is unlikely we would find fault in the way the Council considered drainage issues during the planning application process, and we could not achieve a worthwhile outcome for the complainant.

The complaint

1. Mrs X primarily complains about the Council granting planning permission for a residential development behind her property, which she says is causing surface water to enter her garden. She says it is extremely stressful every time it rains heavily.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. With regard to the first bullet point, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law also says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

5. I considered:
• information provided by Mrs X and the Council, which included their complaint correspondence.
• information about the planning applications for the development, available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

6. I appreciate Mrs X is very unhappy about the impact of the development near her property, and thinks the Council should not have granted planning permission for it.
7. But 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 whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
8. The original planning application for the development included a Flood Risk Assessment and a Sustainable Drainage Assessment. The content of these documents was agreed by the Environment Agency and the Lead Local Flood Authority (as consultees on the applications), with associated conditions imposed on the planning permission for the development. As such, it is unlikely we would find fault in the way the Council considered drainage issues when it determined the planning application, so we will not start an investigation.
9. An investigation is also unlikely to achieve a worthwhile outcome, or be able to achieve some of the outcomes Mrs X is seeking, because:
• We cannot direct the Council to revoke the planning permission.
• We cannot direct the Council to make the developers stop the development.
• Even if we found the Council had failed to properly consider drainage issues during the planning process, it does not mean we would expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s 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.
10. And we have not investigated the following parts of the complaint because, with reference to paragraph 4 above, Mrs X does not appear to have raised these particular matters with the Council via its formal complaints process:
• Planning enforcement concerns about: the approved plans not being followed; the natural border width being too small; tree roots being exposed by diggers; and machinery being left on overnight.
• New residents of the development being responsible for maintaining the site.

I consider it reasonable to expect Mrs X to do so. Mr X can pursue a new complaint with the Ombudsman once she has received the Council’s final response on these matters.

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Final decision

11. We will not investigate Mrs X’s complaint because it is unlikely we would find fault in the way the Council considered drainage issues when determining the application, and we could not achieve a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman