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Rotherham Metropolitan Borough Council (20 013 977)

Category : Planning > Other

Decision : Not upheld

Decision date : 31 Aug 2021

The Ombudsman's final decision:

Summary: Mr X, as Chairperson of a residents’ action group, complained the Council failed to follow the National Planning Policy Framework to ensure flood risk is not increased. There is no evidence of fault by the Council. It properly considered the issues in the terms of an outline application and met the requirements of the National Planning Policy Framework by adding conditions to ensure the risk of flooding does not increase when the reserved matters application is considered.

The complaint

  1. Mr X, as Chairperson of a residents’ action group, complained the Council failed to follow the National Planning Policy Framework (NPPF) when determining an outline planning application for a large housing development.
  2. Mr X says the decision has increased the flood risk elsewhere in the area.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant;
    • discussed the issues with the complainant and another representative of the residents’ group;
    • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. Outline applications establish the principle of a proposal, leaving the ‘reserved matters’ for consideration later. Applications may be made with some or all matters reserved until later.
  2. The Council received an outline planning application for up to 450 homes including details of access on a site where Mr X and the member of the residents group live. All other matters including drainage are reserved.
  3. Mr X, the resident’s group, the parish council, and others objected to the application. The residents’ group commissioned a technical expert to provide a response in respect of the drainage issues and his reports were submitted to the Council. Mr X was also able to speak at the planning committee meeting that considered the application.
  4. The Council consulted statutory consultees on the application. This included (but was not limited to) the Local Lead Flood Authority (LLFA), the Environment Agency, the local water company, and its own drainage officers.
  5. The Planning Officer prepared a report for the Council’s planning committee. The report is a comprehensive document which included the relevant planning policies, a summary of the objections received, details of the consultee responses and the case officer’s appraisal of the application.
  6. The report includes reference to paragraph 163 of the NPPF which says:

“When determining any planning applications, local planning authorities should ensure that flood risk is not increased elsewhere. Where appropriate, applications should be supported by a site-specific flood-risk assessment”

  1. The report included drainage and flood risk issues as one of the main considerations in the determination of the application. The applicant submitted a flood risk assessment which assessed the surface water and fluvial flood risk and the risk posed locally by the development and the runoff it could generate. The report noted that as this was an outline application , the detail of future drainage systems and how they will be developed on site will be considered prior to the submission of the first reserved matters application.
  2. The Council went on to consider whether the site could be safely developed to manage and control any identified long term flood risks in the area. The report gave information about the land and its gradient and stated the site is located wholly within Flood Zone 1 according to the Environment Agency indicative flood maps. It said this means the site is not at risk of flooding from local rivers but noted there is a severe flooding problem downstream and so it must ensure that downstream flooding is not increased. The report went on to say the provision of suitable attenuation on site to mitigate flood risk resulting from the development of the site will be a key factor in the evolution of the site development layout.
  3. The report also commented on foul water drainage. It stated the existing network did not have capacity to accommodate anticipated discharge from the site and a feasibility study will be required to determine suitable foul connection points and that any upgrade would be at the developer’s expense.
  4. The report said the Lead Local Flood Authority (LLFA) has assessed the submitted information and while recognising the application is outline and details of drainage and flood routing will be considered at the reserved matters stage. The LLFA took the view the exact requirement for attenuation will be dependent on the actual development proposals. It also said the applicant had demonstrated that with significant changes to ground profiles, surface water runoff can be adequately attenuated and downstream flood will not be increased.
  5. The Council said there would be a requirement for the developer to produce a drainage solution which works for the whole site as opposed to a piecemeal approach. It said it was seeking a solution that will work for the whole of the allocation and the overall strategy need to be approved with the first reserved matters application. The Council attached a condition requiring the submission of a drainage strategy and masterplan for the whole site. It said that only on that basis could the application be supported from a flood risk and drainage perspective.

Analysis

  1. The complaint from Mr X on behalf of the residents’ group concerns the Council’s consideration of the drainage and flooding issues. In particular Mr X complains the Council has failed to meet the requirements of NPPF paragraph 163. The paragraph requires the Council to ensure flood risk is not increased elsewhere. Mr X says the Council has not met this requirement when determining the outline planning application.
  2. On the basis of the information I have seen, I am satisfied the Council gave proper consideration to the issue of flooding as part of its consideration. The report was comprehensive and highlighted drainage and flood risk as a material consideration. The issue of flooding downstream was clearly considered and the Council noted the mitigation of flood risk will be a key element of any drainage scheme.
  3. I therefore do not agree that the Council has failed to meet the requirements of the NPPF. Because this was an outline application it did not include actual details of the proposed drainage scheme. This will be submitted as part of the reserved matters application. At that time, the Council will assess the detailed scheme and will take a view on whether it is satisfactory. If a suitable drainage scheme cannot be designed that does not increase flood risk then the reserved matters planning application will not be granted and work will not be allowed on the site.
  4. I note Mr X does not agree with the Council’s assessment and that he relies on the opinion of a technical expert the residents’ group commissioned to act for them. Mr X’s expert and the expert council officers’ appear to take a different view on the basis of the information submitted with the outline planning application. A difference of opinion is not evidence of fault. The Ombudsman is concerned with administrative process and not the merits of decisions properly taken even though people may disagree with them. I am satisfied the Council fully considered drainage and flooding issues in respect of this application and there is no evidence of administrative fault in the process leading to that decision.
  5. When I spoke to Mr X and Ms Y, another member of the residents’ group, they told me there were errors in the flood risk assessment. In particular they said the flood risk assessment mentioned the site was sloping when it is obvious to anyone that it rises and falls over the site. I note the committee report mentioned the topography of the site detailing the position of the high point and the position of the low point. There is nothing to suggest the information in the report is incorrect or that members were mislead. On balance, I take the view that even if there was misinformation about the topography of the site, the outcome would not have been different. This was an outline application with drainage issues reserved for later consideration. The Council has clearly highlighted the importance of drainage issues and the risk of flooding downstream. It has added conditions to ensure a suitable scheme for the whole site is provided in order for it grant any reserved matters application.
  6. While I appreciate the concerns of Mr X and the residents’ group, there is no evidence of fault causing a significant injustice in respect of the Council’s consideration of drainage issues and its determination of the outline planning application.

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Final decision

I will now complete my investigation as there is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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