Summary: The Ombudsman will not investigate Mr X’s complaint about the drainage scheme for a housing development near his home. The complaint is late and there are no good reasons for the Ombudsman to exercise his discretion to investigate now.

The complaint

1. Mr X complains the Council was a consultee on a planning permission for a new housing development and approved a drainage scheme that is inadequate.
2. Mr X says the bottom third of his garden has been flooding, preventing him accessing that part of the garden, and damaging his plants due to waterlogging. He wants the Council to write to the developer, and to the local planning authority which granted the permission, to tell them the drainage scheme is inadequate. He wants the developer to amend the scheme.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

7. The local planning authority granted planning permission for the new housing development in 2016. The planning permission was conditional on the applicant submitting a drainage scheme, and details of its maintenance and management. The Council was the consultee on the applicant’s scheme. Its officers considered the scheme was acceptable. Officers referred the scheme to the Environment Agency (EA) as part of their assessment.
8. The planning authority made its decisions to discharge the planning conditions about drainage more than 12 months before Mr X complained to the Ombudsman. The Council’s involvement as a consultee in that planning decision was also more than 12 months ago. The evidence indicates Mr X first reported his concerns about his garden flooding in or around March 2017, so the complaint is late. The restriction on the Ombudsman’s remit in paragraph four above applies, and the Ombudsman will not normally investigate.
9. I recognise Mr X has been in contact with the planning authority, this Council and the developer for over three years. But the Ombudsman’s 12-month time limitation starts from the date on which someone becomes aware of the issues giving rise to their complaint, not the date of any other event within a complaint’s history.
10. In line with the Ombudsman’s remit, I have gone on to consider whether he should exercise his discretion and investigate this late complaint. I do not consider there are good reasons for the Ombudsman to do so. An Ombudsman investigation is unlikely to find enough fault with the way the Council made its decisions. I say this because the Council’s consultee responses to the planning authority were professional judgements officers were entitled to make. Officers consulted the EA when considering the drainage proposals, the body best placed to provide guidance to councils making decisions on the suitability of drainage schemes. The Ombudsman cannot go behind a council’s professional judgement decision when it has been properly reached. It is not fault for a council to make a decision with which someone disagrees.
11. Furthermore, the Ombudsman could not say any injustice Mr X claims from the grant of the planning permission and discharge of the drainage condition leads back to this Council’s consultation role and decision. The local planning authority gave the scheme conditional permission, then discharged the relevant condition, not this Council. There is no direct connection between this Council’s actions as a consultee in the planning process and Mr X’s claimed injustice from the development. It was open to the planning authority to not accept the Council’s view on the drainage scheme.

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Final decision

12. The Ombudsman should not investigate this complaint. This is because the complaint is late, and there are no good reasons for the Ombudsman to exercise his discretion and investigate now.

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Investigator's decision on behalf of the Ombudsman