North Kesteven District Council (19 014 570)

Category : Planning > Other

Decision : Not upheld

Decision date : 29 Oct 2020

The Ombudsman's final decision:

Summary: Miss B complains the Council failed to properly consider a planning application to vary a condition for nearby development with particular reference to drainage issues. Miss B says as a result her land suffers surface water flooding on a scale not previously experienced. The Ombudsman has found no fault in the Council’s decision making process.

The complaint

  1. The complainant, whom I shall refer to as Miss B, complains the Council failed to properly consider a planning application to vary a condition for nearby development. In particular, Miss B says the Council did not adequately address drainage issues.
  2. Miss B says because of the Council’s fault, her land suffers surface water flooding on a scale not previously experienced. Miss B says this has included flooding to a field shelter and tack room which damaged stored hay and affected her paddock and the availability of pony grazing.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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

  1. I read the papers provided by Miss B and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss B after removing third party details. I have explained my draft decision to Miss B and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

  1. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
  2. After a LPA has received a planning application, it will undertake a period of consultation where views on the proposed development can be expressed. The main types of consultation will include public consultation with neighbouring residents and community groups and both statutory and non-statutory consultees.
  3. Schedule 4 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 prescribes the consultation requirements. This sets out that the Lead Local Flood Authority (LLFA) must be consulted for all major development with surface water drainage. Major development in this context is development providing 10 or more houses or on a site of 1 hectare or more.
  4. A full permission will grant permission for all aspects of a proposal, though usually permission is granted subject to planning conditions. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the LPA.
  5. Where planning permission is granted subject to conditions, it is possible to apply for a permission to vary or remove those conditions. The LPA will then issue a fresh planning decision.

Key events

  1. There are three applications relevant to this complaint and I set out brief details on each below to aid understanding. However, I have not investigated the Council’s consideration of the original 2017 planning application as any complaint about this would be caught by the restriction outlined at paragraph 5 above.

Application A.

  1. The Council received an application for a small housing development (less than 10 houses) in January 2017. The Council consulted the County Council in its capacity as both (LLFA) and Highways Authority.  The County Council provided comments in May which raised no objections but sought several conditions including a request for full engineering, drainage, street lighting and constructional details to be agreed and a condition relating to a scheme to construct a frontage footpath to be agreed. These conditions were included in the Council’s decision notice at conditions 14 and 11, respectively. The County Council did not raise any issue about the principle of the development in relation to surface water flooding.
  2. The relevant water authority also provided comments in May and sought a condition requiring drainage plans for the disposal of surface water and foul sewage to be provided and approved by the LPA before development started. This condition was included as condition 4 on the Council’s decision notice with some minor amendment to the suggested wording.
  3. The case officer’s delegated report for the application includes the following statement under a heading ‘Flood Risk and Surface Water’:

“The site is located in Flood Risk Zone 1 where there is minimal risk of fluvial flooding. Surface Water drainage is proposed to be dealt with by infiltration. Suitable means, and detailed design of proposed surface water disposal, will be dealt with by Building Regulations.

Both the parish council and a number of objectors have raised the issue of the existing foul water system and whether it has available capacity. Severn Trent have been consulted and confirmed no objections to the proposals, but have requested a condition requiring the agreement of a drainage strategy prior to development commencing. This suggests that upgrades may be required but can be achieved by the imposition of such a condition. As such, whilst local objections on this matter are noted, in light of the advice of the statutory consultee it would be unreasonable to withhold planning permission on this basis.

Accordingly the proposals are considered to be acceptable in terms of policy LP14 'Managing Water Resources and Flood Risk' of the CLLP.”

  1. The Council granted planning permission subject to conditions in May 2017.

Application B

  1. The Council received an application from the developer in December 2018 to discharge conditions placed on the above permission before starting development. The application contained a drainage layout and construction details for the drainage design.
  2. The LLFA provided comments to the Council towards the end of January 2019 and raised no objections other than about the details submitted to discharge the condition relating to the design of the frontage footpath. 
  3. The Council has highlighted that following separate negotiation with the applicant the County Council decided it did not wish to pursue the frontage footpath.  This led to the submission of Application C (see below).  
  4. The Council received no further response from the County Council as LLFA or Highways Authority on this application.
  5. The water authority did not confirm to the Council that the details submitted were acceptable to discharge the relevant condition but did approve the details via S106 of the Water Industry Act 1991. The Council has provided an email from the developer’s agent to the water authority which confirmed surface would be disposed of on site by infiltration. The water authority approved an application to connect to the local public sewer in July 2019.
  6. The Council confirmed the relevant conditions including the pre-commencement element of the condition relating to foul and surface water treatment as being discharged in March 2020.
  7. The Council was satisfied surface water drainage would be dealt with by infiltration and the detailed design of the scheme would be controlled by Building Regulations.
  8. The Council refers to government advice on the interface between different regulatory controls and highlights that conditions which duplicated existing controls would fail the relevant test of ‘necessity’.

Application C

  1. The Council received an application to vary a condition attached to Application A in April 2019. This included the same drainage details as Application B without the frontage footpath.
  2. The County Council as LLFA and Highway Authority made no objections to the application. The water authority did not provide a response.
  3. Miss B objected to the application and raised concerns about possible access using her land as the applicant had stated a particular ditch was to be cleared out. Miss B also noted the ditch would not provide additional capacity as during an average winter it was full and during a wet winter it was over capacity and her pony field was under water. Miss B noted this was the case before any development when the site was grassland.
  4. The Council updated the relevant condition of the original permission and issued a decision notice with the following condition: “Foul water from the proposed development will be dealt with by way of provision of a publically adopted foul drain and surface water shall be dealt with by way of infiltration on site with no off site discharge, unless otherwise agreed in writing by the district planning authority.”
  5. The Council granted this application in June 2019. The Council has highlighted that by the time the determination was made in June, the case officer was aware an approval under S106 of the Water Industry Act 1991 was under negotiation between the developer’s agent and the water authority and imminent. The officer was also aware the applicant had confirmed surface water would be dealt with by way of infiltration on site and the details of this would continue to be controlled by Building Regulations.

Commentary

  1. The Council notes that although sustainable urban drainage systems (SUDS) set out infiltration as being the preferred means of dealing with surface water any such scheme requires a means of mitigating flows of water.  Part H of the Building Regulations requires the construction of soakaways to hold rainwater for a period to allow it to seep into the ground at a slow rate.  The Council also notes any system is limited by its capacity as is an undeveloped site when the ground becomes saturated and runoff will still occur during high intensities of rainfall. The Council says this is important in understanding the implications of developing the site for Miss B’s land.  The Council notes the site falls in the direction of Miss B’s land and flows will be towards the ditch that lies between the two plots of land and if this fills will flow to the adjacent lower lying land.  The Council notes this was the case before the above applications and will continue to be the case during very heavy rainfall. 
  2. The Council has accepted that it was not until Miss B’s contact in October 2019 that it became aware the County Council as LLFA was not assessing all planning applications. The Council has referred to training provided by the County Council in 2015 and 2019 from which it understood the County Council as LLFA would assess all planning applications including applications that were not ‘major’ development. The Council has confirmed it is in correspondence with the County Council about this issue.

Analysis

  1. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
  2. It was not fault for the Council to consult with the County Council in its capacity as LLFA for the above applications despite not being required to do so as the proposals did not constitute ‘major’ development. LPAs must be satisfied proposed plans are acceptable and are entitled to rely on responses from consultees as planning officers cannot be experts in all aspects of development and will seek advice as appropriate. The Council has provided cogent reasons for its understanding that the County Council was considering all applications.
  3. I have gone on to consider whether the Council’s belief the County Council had assessed the plans attached to Applications B and C when it had not done so led it to reach a faulty decision. I do not consider this to be the case. The Council has provided good evidence it had due regard to surface water drainage at the site during its consideration of the above applications.
  4. Based on the information provided, I am satisfied the Council had enough relevant information including about drainage matters to reach sound decisions.

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Final decision

  1. I have completed my investigation as I have found no evidence of fault by the Council in its decision making process.

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Investigator's decision on behalf of the Ombudsman

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