Summary: Mr X complained about Council’s decision to discharge a planning condition for surface water drainage without properly consulting with the flood authority. We have found the Council was at fault for not doing so, however this did not affect the outcome because retrospective approval for the scheme was given. We are satisfied the injustice to Mr X has already been remedied by the Council subsequent actions, including an apology to Mr X for the failure to properly consult.

The complaint

1. Mr X complains about the Council’s decision to discharge a planning condition for surface water drainage without properly consulting with the flood authority. He says the drainage scheme is inadequate and has led to excess water on his property, increased the risk of future flooding and affected the value of his home.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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

5. I considered information provided by Mr X and the Council.
6. I spoke to Mr X about his complaint.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legal context

8. 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.
9. 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 authority.
10. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
11. Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
• Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.

12. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.

Key events

13. On appeal, the Planning Inspectorate granted planning permission for a development of several houses adjected to Mr X’s property.
14. As part of the planning permission the developer had to submit details for surface water drainage to the Council for approval. The developer’s drainage scheme was supported by a specialist consultant’s report (“the Original Report”).
15. In December 2019, the Council approved the developer’s surface drainage scheme. Five days prior to this, Mr X encountered a problem with surface water drainage on his property. He had to make an insurance claim for flooding to his garage and damaged belongings. He also reported the problem to both the developer and the Council. Mr X asked the local flood authority (“the County Council”) whether it had been consulted on the suitability of the scheme prior to its approval by the Council. The County Council told Mr X it had not.
16. Mr X, and another affected party, pressed the Council to explain why it had not done so and take action in respect of the problem.
17. In December 2020, the Council carried out a site visit. Shortly afterwards the County Council confirmed the drainage scheme submitted by the developer was acceptable.
18. In January 2021, Mr X complained to the Council about its decision to approve the scheme without consulting the County Council. In response, the Council accepted it was at fault for not doing so. But having done so retrospectively, it was satisfied the decision was correct.
19. Mr X complained again, questioning this conclusion, particularly as he said the due diligence behind this decision was inadequate.
20. The Council agreed to commission an independent report (“the Independent Report”) to evaluate the developer’s scheme. Its conclusion was that the Council had approved “an erroneous and flawed surface water drainage strategy”.
21. The Council asked the County Council to comment on the Independent Report. Its response was that the Independent Report was based on an alternative methodology and remained satisfied the Original Report and drainage scheme were both sound. This was confirmed by the authors of the Original Report.
22. Mr X was advised of this by the Council. It explained that as the County Council had supported the Original Report, it remained satisfied the decision to approve the discharge of the planning condition was correct. It apologised for the stress and anxiety caused by the initial fault.

The Council’s response to the Ombudsman’s enquiries

23. In response to the Ombudsman’s enquiries, the Council made the following points.

• The Council did consult with the County Council at the appropriate time but did not receive a response due to resource issues. The Council agreed it went ahead because another part of the development had already been approved and fully signed off.
• The Council commissioned the Independent Report, on a without prejudice basis, as a result of persistent and forceful complaints.
• Upon receipt of the Independent Report, the Council consulted with both the County Council and the developer. Having considered their responses, the Council was satisfied the developer’s scheme was not wrong, but applied a different methodology. The County Council agreed a different methodology could be used.

Analysis

24. It is not for us to reassess the surface water drainage scheme and decide if the Council was correct to approve it; we are not an appeal body. We can only look at whether the Council followed the correct process in approving the scheme. If it did not, we can consider the impact of any fault on Mr X.
25. I am satisfied there was fault. The Council has already accepted it should have obtained the County Council’s consultation response prior to discharging the planning condition.
26. However, in response to Mr X’s concerns, the Council referred the surface water drainage scheme to the County Council in its capacity as lead local flood authority and it confirmed it was satisfied with the arrangements and had no objection.
27. To the Council’s credit, it then commissioned the Independent Report to assess the scheme. But the Council was not obliged to agree with its conclusions and was entitled to then invite the County Council to comment on it. The County Council remained of the view the Original Report and resultant drainage scheme remained were acceptable.
28. The Council is entitled to rely on the view of the County Council, and we cannot say the decision is wrong. We can only consider whether the correct procedure was followed. I am satisfied it was at this later stage.
29. Therefore, even as there was fault not to have received the County Council’s view at the correct time, I am satisfied the outcome would not have been different.
30. Overall, the evidence I saw did not persuade me the Council would have refused to discharge the planning condition even if the consultation had been properly completed. For this reason, I have found the injustice to Mr X was the avoidable frustration caused by the uncertainty about whether the outcome would have been different had it done so. This uncertainty has already been suitably remedied by the Council’s apology and subsequent actions in seeking the Independent Report and further consultation with the County Council.
31. I have noted the Council has reflected on what happened in this case and taken steps to ensure it does not happen again by reminding relevant staff of the need to receive approvals prior to discharge. For this reason, I do not consider it is necessary to make any further service improvement recommendations to the Council.

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Final decision

32. I have found fault with how the Council approved the discharge of a planning condition. However, it has apologised and taken appropriate action to retrospectively ensure this was the correct decision. I consider this to be a suitable remedy.

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Investigator's decision on behalf of the Ombudsman