Summary: We will not investigate Mr X’s complaint about the Council’s strategic flood risk assessment, which he believes is flawed. This is because the complaint is late, the assessment itself does not cause Mr X significant injustice and the Planning Inspectorate is better placed to decide if the Council may rely on it.

The complaint

1. The complainant, Mr X, is a property developer. He complains the Council has used a strategic flood risk assessment created by its contractors to inform changes in policy which will impact his business. Mr X considers the assessment is flawed and should not be relied upon. He would like the Council to commission an independent review of the assessment and alter its approach.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
6. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

7. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

8. Mr X complained to the Council originally about this matter in August 2021 but he did not bring his complaint to us until January 2023; it is therefore late.
9. The impact Mr X claims to his business is also entirely speculative at this stage as it concerns the outcome of applications for planning permission which he has not yet made.
10. If Mr X applies for planning permission to develop his land and the Council refuses his applications based on the strategic flood risk assessment he may appeal to the Planning Inspectorate. As part of his appeal he may argue the assessment is flawed and incorrect. This is not something we can determine as it concerns an issue of professional judgement.
11. The Council has explained that Mr X may comment on the assessment as part of the consultation process for its local plan update, which will be considered by a Planning Inspector. The Planning Inspector is better placed to consider Mr X’s comments and whether it impacts the validity of the proposed updates.
12. Mr X has also made requests for data which fed into the strategic flood risk assessment and is unhappy the Council has failed to release this to him. But this is an issue which it would be reasonable for him to take to the Information Commissioner. If the Information Commissioner considers the Council has wrongly withheld information it may direct the Council to release it to Mr X.

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Final decision

13. We will not investigate this complaint. This is because the complaint is late and the Council’s actions have not caused Mr X significant injustice. There are also other bodies better placed to consider whether the assessment which forms the basis of this complaint should be incorporated into changes to the local plan.

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Investigator's decision on behalf of the Ombudsman