Summary: Mr B complains the Council held a referendum for a neighbourhood plan containing a misleading statement about not building houses on flood zone land. Mr B says residents may be adversely affected by development on flood zone land and were potentially misled by the statement which may have affected the referendum outcome. The Ombudsman has found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains on his own behalf and for four other residents that the Council held a referendum for a neighbourhood plan containing a statement the plan avoided building houses on any land in flood zones 2 and 3 but later told him it intended to interpret an ambiguous change it had made elsewhere in the plan to replace “in flood zone 1” with “in flood zone 1 levels” as allowing houses at a particular site to be built in flood zone 2 land if raised to flood zone 1 level. Mr B says if this was the intention the statement was false and misleading. Mr B further complains the independent examiner did not recommend or authorise the amendment to the consultation version of the plan in his public report but the developer later instigated this and the Council and examiner agreed it in private correspondence. Mr B says if the Council interpret the amendment as it now suggests it was a substantive amendment to a plan policy that the Parish Council emphasised in public consultation during preparation of the plan which agreed with the stated policy of the Council’s Local Plan. However, Mr B says the Council’s decision statement falsely represented this amendment as being a factual and clarifying correction only. For these reasons Mr B says voters could not reasonably be expected to interpret the ambiguous amendment as allowing houses to be built in flood zone 2.
2. Mr B says because of the Council’s fault he and others may be adversely affected by houses being built on land in flood zone 2 despite a clear statement the plan avoided this. Mr B also says he and others were potentially misled by the Council’s statement and this may have affected the outcome of the referendum.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as parish councils. (Local Government Act 1974, sections 25 and 34A, as amended)
6. 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

7. I read the papers provided by Mr B and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr B. I have explained my draft decision to Mr B and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. Neighbourhood planning gives communities a direct role to develop a shared vision for their area and deliver the sustainable development they need. This is because unlike parish, village or town plans that communities prepare, a neighbourhood plan forms part of the development plan and sits alongside the local plan prepared by the local planning authority (LPA). Decisions on planning applications will be made using both the local plan and the neighbourhood plan, and any other material considerations.
9. Where a community wants to take up the opportunities offered by neighbourhood planning, the legislation allows three types of organisation, known as ‘qualifying bodies’, to lead it:

• a parish or town council
• a neighbourhood forum
• a community organisation

The qualifying body here was the Parish Council.

10. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, LPAs should set out clearly their strategic policies for the area and ensure an up-to-date Local Plan is in place. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies. However, a neighbourhood plan should contain policies for the development and use of land. This is because, if successful at examination and referendum (or where the neighbourhood plan is updated by way of making a material modification to the plan and completes the relevant process), the neighbourhood plan becomes part of the statutory development plan. Applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
11. Councils have a duty to guide and assist qualifying bodies preparing neighbourhood plans. This will include sharing information, providing advice and encouraging best practice.
12. Councils must progress a submitted neighbourhood plan proposal through the formal stages which include: publicising the submitted plan proposal; arranging an independent examination; determining if the plan should proceed to referendum; and making the necessary arrangements to hold the referendum.
13. A policy in a neighbourhood plan should be clear and unambiguous. It should be drafted with enough clarity that a decision maker can apply it consistently and with confidence when determining planning applications. It should be concise, precise and supported by appropriate evidence. It should be distinct to reflect and respond to the unique characteristics and planning context of the specific neighbourhood area for which it has been prepared.
14. When considering the content of a neighbourhood plan, an independent examiner’s role is limited to testing whether or not a draft neighbourhood plan meets the basic conditions, and other matters set out in paragraph 8 of Schedule 4B to the Town and Country Planning Act 1990 (as amended) as applied to neighbourhood plans by section 38A of the Planning and Compulsory Purchase Act 2004.The independent examiner is not testing the soundness of a neighbourhood plan or examining other material considerations.
15. When considering a proposal for the modification of a neighbourhood plan that is already in force, an independent examiner must first decide whether the proposed modifications are so significant or substantial as to change the nature of the plan.
16. There are three types of modification which can be made to a neighbourhood plan or order. The process will depend on the degree of change which the modification involves:

• Minor (non-material) modifications to a neighbourhood plan or order are those which would not materially affect the policies in the plan or permission granted by the order. These may include correcting errors, such as a reference to a supporting document, and would not require examination or a referendum.
• Material modifications which do not change the nature of the plan or order would require examination but not a referendum. This might, for example, entail the addition of a design code that builds on a pre-existing design policy, or the addition of a site or sites which, subject to the decision of the independent examiner, are not so significant or substantial as to change the nature of the plan.
• Material modifications which do change the nature of the plan or order would require examination and a referendum. This might, for example, involve allocating significant new sites for development.

17. Those wishing to make their views known to the independent examiner, or who wish to submit evidence for the examiner to consider, will do this by submitting written representations to the LPA during the statutory publicity period on the submitted draft neighbourhood plan, which must be at least six weeks.
18. Representations should address whether the draft neighbourhood plan proposal meets the basic conditions and other matters that the independent examiner is required to consider. Representations may also address whether the referendum area should be extended beyond the neighbourhood area. Anyone wishing to make a case for an oral hearing should do so as part of a written representation
19. It is only after the independent examination has taken place and after the examiner’s report has been received that the LPA comes to its formal view on whether the draft neighbourhood plan or Order meets the basic conditions.
20. The Sequential Test ensures that a sequential approach is followed to steer new development to areas with the lowest probability of flooding. LPAs allocating land for development should apply the Sequential Test to demonstrate there are no reasonably available sites in areas with a lower probability of flooding that would be appropriate to the type of development or land use proposed. A sequential approach should be used in areas known to be at risk from other forms of flooding. In areas at risk of river or sea flooding, preference should be given to locating new development in Flood Zone 1. If there is no reasonably available site in Flood Zone 1, the flood vulnerability of the proposed development can be taken into account in locating development in Flood Zone 2 and then Flood Zone 3. Within each Flood Zone new development should be directed to sites at the lowest probability of flooding from all sources as indicated by the Strategic Flood Risk Assessment for the area.

What happened

21. Mr B wrote to the Council in March 2017 about how the Sequential Test had been applied to flood risk sites and one particular site. Mr B enclosed a legal opinion he had obtained highlighting concerns about the Steering Group’s approach to the Sequential Test and about the proposed allocation of a particular site in the neighbourhood plan for residential development. Mr B sought the Council’s advice on the appropriateness of the process the qualifying body was following.
22. The Council responded in April and confirmed it would continue to work with relevant bodies to ensure that flood risk was dealt with appropriately in emerging neighbourhood plans. The qualifying body also asked the Council to provide written advice to help them deal with concerns they had received from Mr B directly. The Council provided advice to the qualifying body in April.
23. Mr B corresponded further with the Council about the process and the potential allocation of the site. The Council’s response to Mr B in July set out the explanation from the qualifying body about whether the development proposed would be located in Flood Zone 1 or Flood Zone 2. This stated:

“for clarity, based on current Environment Agency flood zone data, most of the site falls in current Flood Zone 1 (FZ1), with the proposed development taking place in FZ1 only. Only after the predicted climate change is considered, could a number of dwellings fall under FZ2. To ensure any proposed allocation is safe for its lifetime, the neighbourhood planning group is exploring, with the prospective developer, the possibility of raising the land level so that any new dwellings would remain in FZ1.”

24. The Council advised the qualifying body to seek advice from the Environment Agency to refine their proposals before formally submitting the draft plan proposal.
25. The plan provided to the Council proposed allocating a particular site for approximately 20 houses under draft Policy 07 with requirement 5 stating: “All physical dwellings must be in an area of approximately 1.5ha in Flood Zone 1 and built to safe standards recommended by the Environment Agency and OCC to protect against long-term flood risk.”
26. 
    The Council says the neighbourhood plan was complex as it was considering growth in an Area of Outstanding Natural Beauty and flood risk. The Council was aware the plan proposals attracted objections that needed careful consideration and appointed a planning barrister to independently examine the plan.
27. The independent examiner decided to hold a public hearing which included exploring whether the allocation of sites was appropriate and how many dwellings were likely to be delivered on the sites up to 31st March 2033.
28. Mr B made a representation on behalf of a group of residents to the examiner in July 2018 before the public hearing. This confirmed the matters in dispute as “… whether the site does indeed pass the sequential test, and whether it is sensible or appropriate to allow development in areas in flood zone 1 in the current flood map which will be in flood zone 2 when the map is amended to reflect the latest flood risk model already completed by the Environment Agency this year”.
29. The above issue was raised at the public hearing and the examiner asked for the submission of any revised flood map. The Council forwarded correspondence from the qualifying body to the examiner in November 2018. This updated the qualifying body’s position about part of the development potentially falling within flood zone 2 in the light of revisions made to the flood map. It stated: “Even if the developer now proposes some development to take place in flood zone 2, we believe that, with the removal or modification of site-specific requirement 5, it would still be possible to allocate the site in the Plan. Our reasoning for this is as follows:

The current site-specific restriction 5 states that all dwellings should be in
flood zone 1. This restriction was agreed with the developer and did not
previously present a burden which would impact the viability of the site.
However, we have previously been advised by SODC and the JBA Flood
consultants that it would contravene planning guidance to attempt to
introduce a general plan policy that refused residential development because it would be in flood zone 2. This is because NPPG states that development consisting of exclusively dwelling houses is classed as ‘more vulnerable’, and that this is permitted in flood zone 2 without the requirement for an exception test. As such we believe the Plan could not reject the site simply because an element of the development was in flood zone 2. We also concluded that, had the developer refused to agree to all development being in flood zone 1, and demonstrated that it would be a burden that would impact the viability of the site, to insist on this criterion would have risked the Plan failing basic conditions...”

The qualifying body further stated: “Policy 07 site-specific criterion 4 was deliberately included to take into account any future changes in flood protection policy between the making of the Plan and any detailed planning application. It states, “A flood risk assessment must be produced to accompany any planning applications as may be required by national/local policy/regulations”.

30. The examiner prepared a report containing his findings. This stated the following at paragraph 40:

“Part of this low-lying site east of Manor Road is within flood zone 2 and 2018 draft flood predictions indicate that part may lie within flood zone 3 with some of the land allocated for housing in the Submission Draft in this zone. This is a matter on which I give substantial weight to the view of the Environment Agency. However its letter of 24th July 2017 predates the 2018 draft flood predictions. Re-contouring may assist; but the site is downstream of existing homes, so it would be especially important to ensure that recontouring does not hold water back. It will be able to provide some housing in Flood Zone 1 and may still be able to deliver 20 new dwellings; but the matter is uncertain and on the evidence before me I have been unable to conclude with confidence either that it is likely to provide 20 dwellings or that it is unlikely to do so. It follows that the NDP should make provision for it not being able to do so.”

31. The Council accepted the examiner’s recommendations and made necessary amendments to accurately reflect revisions to the flood map and minor drafting changes. Mr B says none of these were controversial or the subject of his complaint.
32. The Council says in its stage 1 complaint response to Mr B that it had a duty to consider each of the recommendations made by the examiner with their reasons and decide what action to take. The Council stated it could modify a draft neighbourhood plan to:

• ensure the draft plan meets the basic conditions
• ensure the draft plan is compatible with the Convention rights
• correct errors

33. The Council advised Mr B it modified the plan to correct an error to ensure it was accurate in response to the updated Environment Agency’s flood map and ensure the policy wording provided the clarity required in national planning policy and guidance. The Council highlighted there were references in the plan that considered flood map information that was out of date following the publication of the updated flood map.
34. The Council has provided details of the analysis to inform the preparation of the policy including an image showing the flood map before it was updated, an image showing the proposed layout that informed the qualifying body’s assessment of the site and an image showing the updated flood map. The update to the Environment Agency’s flood map increased the extent of flood zone 2 area affecting the particular site. The proposal under Policy 07 for the allocation of the site for approximately 20 dwellings remained unchanged.
35. As the examiner did not recommend a reduction in the number of houses proposed by Policy 07 and a proportion of the development proposed on the site now sat within flood zone 2 as a result of the update to the flood map the Council decided it was necessary to modify requirement 5 of Policy 07.
36. As set out at paragraph 25 above, the original requirement read:

“All physical dwellings must be in an area of approximately 1.5ha in Flood Zone 1 and built to safe standards …”

The modified version reads:

“All dwellings must be built in Flood Zone 1 levels and be built to safe standards…”

37. Mr B says the modification of requirement 5 of Policy 07 to insert the word “levels” was to allow development in flood zone 2 and this is the subject of his complaint.
38. The Council says allowing the policy to continue to say that approximately 20 dwellings would be delivered on flood zone 1 only would have been inaccurate and misleading. The Council says it sought to keep as much of the original requirement 5 as possible and only make modifications that were considered necessary to correct the error above and ensure enough clarity about how the policy should be interpreted.
39. The Council contacted the examiner to establish whether the modification under consideration would be consistent with his considerations and recommendations. The Council set out the two amendments in relation to the relevant policy it proposed. The first was to remove references to the proportion of the site that was in Flood Zone 1 in the light of the revised Environment Agency flood mapping. The second was to insert the word ‘levels’ after Flood Zone 1 to clarify that the re-contouring referred to in the Examiner’s report might help in the delivery of housing on the site by taking land on which dwellings are to be constructed to levels equivalent to Flood Zone 1. The Council confirmed it intended to modify the plan on both counts as a factual correction. The Examiner confirmed he was satisfied the proposed changes were consistent with his report.
40. Mr B says the modification was instigated by the developer. The Council says this is incorrect. The Council says it was working closely with the qualifying body during the preparation of the referendum version of the neighbourhood plan while considering the examiner’s recommendations as required. The Council says it was already discussing the modification with the qualifying body when it received a letter from the site promoter. The Council decided to seek clarification from the examiner and shared the developer’s letter with the examiner as it highlighted the issue being considered. The Council notes the examiner had no formal role at this stage but responded to the Council’s request for clarification. The Council says it took reasonable steps to ensure it understood the examiner’s recommendations and issued a decision statement with reasons.
41. Mr B says residents were misled in the lead up to the referendum. Mr B says 82% of respondents to an earlier 2016 survey by the qualifying body said it was important to avoid flood risk sites and the qualifying body’s initial consultation emphasised that any proposed housing would be limited to flood zone 1. The Ombudsman has no power to investigate the actions of the qualifying body. The Council disputes residents were misled and highlights that its published decision statement contained a schedule of modifications setting out the changes made to the plan and the reasons for them. This statement was published in advance of the referendum. The qualifying body also held a public event to explain the modified plan to the community before the referendum.
42. Mr B refers to the Council interpreting the change as allowing houses at the particular site to be built on flood zone 2 land if this is raised to flood zone 1 level which contradicts the statement in the plan that it avoids building houses on any land in flood zones 2 and 3. This is because paragraph 1.6.2.c of the introduction section of the neighbourhood plan says: “It avoids building houses on any land in Flood Zones 2 and 3 (see Glossary)”.
43. Although it may have been possible to either caveat the above mentioned paragraph or cross reference it to the specific policy which introduced the concept of levels I do not see this was necessary as it is intended as an introductory paragraph to the plan as a whole. I note the Examiner considered re-contouring may help in relation to this one site which could still deliver 20 homes in Flood Zone 1 although this was not certain. The relevant policy (07) which provides the detail is clear that it allocates the particular site for approximately 20 houses and that they must all be built in ‘Flood Zone 1 levels’ and be built to safe standards.
44. Section 38B (3) of The Planning and Compulsory Purchase Act 2004 sets out that: “If to any extent a policy set out in a neighbourhood development plan conflicts with any other statement or information in the plan, the conflict must be resolved in favour of the policy”.
45. Ultimately, any proposals to develop the site would be the subject of a planning application which would involve consideration of which parts of the site should be built on and whether re-contouring would help. Mr B and other residents would have an opportunity to make representations in response to any such application.
46. Based on the information provided, I have seen no evidence the Council has failed to carry out any of the functions that have been laid down as part of its role in the neighbourhood planning process or evidence of other fault. The Council has provided cogent reasons for the modification and why this was permitted.

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Final decision

47. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman