Tonbridge and Malling Borough Council (19 014 078)

Category : Planning > Planning advice

Decision : Not upheld

Decision date : 24 Sep 2020

The Ombudsman's final decision:

Summary: Mrs C complained about the Council's pre-application planning advice which she says led to unnecessary time and expense in pursuing an application which was unlikely to be successful. The Ombudsman has found no evidence of fault by the Council.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complains about the Council's pre-application planning advice. In particular, Mrs C says the Council provided information about which flood zone the application site was in which was different from subsequent information from the Environment Agency. Mrs C also says the Council failed to help resolve this difference during its consideration of the planning application.
  2. Mrs C says because of the Council's fault she has spent unnecessary time and expense on pursuing an application which was ultimately unlikely to ever be successful.

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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. 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 Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

  1. There is no duty to provide pre-application advice and councils cannot insist developers seek such advice. But it is accepted good practice for councils to offer and encourage pre-application discussions and most do so. Government policy and practice also supports pre-application advice to improve the efficiency and effectiveness of the planning application system.
  2. Pre-application advice does not bind the council and any planning application then submitted must be considered on its merits, taking account of representations from statutory consultees and people responding to the publicised application. It is good practice for councils to make clear pre-application advice is not binding in the information they publish on their websites; and when giving written pre-application advice.
  3. Councils should act in good faith and with due diligence in providing pre-application advice. Officers should be familiar with local planning policies relevant to proposals and aware of the supporting information needed for different applications such as flood risk assessments (FRAs), noise reports and mitigation proposals. However. councils are not agents or consultants for prospective developers. Officers will respond to the proposals and information put forward by the developer and say whether they are likely to receive planning permission and or how they may be changed to better comply with relevant planning policies.
  4. There is no right of appeal for delay or against the advice given. In the latter case, the way to test that advice is to make a planning application and, if necessary, appeal any refusal of planning permission.
  5. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended) requires LPAs when assessing the acceptability of a scheme on the grounds of flood risk to consult with the Environment Agency (the Agency) as a statutory consultee in certain circumstances. The Order refers to Flood Zones 1, 2 and 3 and the LPA is required to consult the Agency about development of the type proposed in this case in Flood Zone 3. The Order does not distinguish between Flood Zones 3a and 3b.The Agency’s standing advice also refers to Flood Zones 1, 2 and 3 and does not distinguish between Flood Zones 3a and 3b.
  6. The ‘Sequential Test’ ensures that a sequential approach is followed to steer new development to areas with the lowest probability of flooding. LPAs allocating land for development should apply the Sequential Test to demonstrate there are no reasonably available sites in areas with a lower probability of flooding that would be appropriate to the type of development or land use proposed. A sequential approach should be used in areas known to be at risk from other forms of flooding. In areas at risk of river or sea flooding, preference should be given to locating new development in Flood Zone 1. If there is no reasonably available site in Flood Zone 1, the flood vulnerability of the proposed development can be taken into account in locating development in Flood Zone 2 and then Flood Zone 3. Within each Flood Zone new development should be directed to sites at the lowest probability of flooding from all sources as indicated by the Strategic Flood Risk Assessment (SFRA) for the area.


Key events

  1. The Council provided Mrs C with pre-application advice dated 22 March 2018. The Council stated, amongst other things, that the east of the site was within Flood Zone 3 with the rest of the site being within Flood Zone 2. The advice also stated there was not enough information to fully consider the proposal on the grounds of flood risk but that it may be possible to locate the development into the lower risk areas of the site which subject to suitable flood resilience measures could meet the relevant sequential test. The Council suggested the applicant consider contacting a flood risk specialist to inform the design and provide a FRA to support the application. The Council’s letter made clear the advice was provided on an informal basis and was not binding if Mrs C decided to make a subsequent planning application.
  2. The Council has confirmed it used the flood mapping data shown on the Planning Services section of the Council’s GIS mapping system that was available to officers at the time the pre-application enquiry was considered.
  3. Mrs C obtained information about the flood risk of the site from the Agency in May 2018. The document is dated 3 May 2018 and titled ‘Product 4 (Detailed Flood Risk)’ for the site in question. This document confirmed the site was within Flood Zone 3 and enclosed an extract of the Flood Map for the area. This appears to show the majority of the application site within Flood Zone 3. The document also confirmed the Flood Map had been derived using modelling of the River Medway completed in 2015.
  4. Mrs C subsequently obtained a FRA which is dated December 2018. This says the site lies in Flood Zone 3 and the proposed development is classed as ‘more vulnerable’. However, the FRA considered the development was viable if mitigation, warning and evacuation procedures could be maintained over the lifetime of the development. The FRA has a map extract from the Agency and says they were consulted to establish the Flood Zone of the proposed site. The FRA also refers to the Agency Flood Map App A and concludes the site is in Flood Zone 3a. There is a note which refers to the ‘Product 4’ dated 3 May 2018 above which says regular checks should be made with the Agency to see if there are any changes with maps being updated quarterly. The FRA concluded the sequential test could be passed.
  5. Mrs C made a planning application via her agent to the Council in February 2019.
  6. The Agency was a statutory consultee and objected to the application. The Agency’s objection dated 14 March 2019 stated the site was within Flood Zone 3b (functional floodplain) and the development was classed as more vulnerable and it was not compatible with this Flood Zone and should not be permitted.
  7. The Agency responded to a query from Mrs C’s agent in April 2019 and referred to its detailed flood modelling and that most of the site was classified as Flood Zone 3b (functional floodplain) with the North West corner designated Flood Zone 3a. The Agency confirmed it would oppose any residential development in the location because of the risk of flooding.
  8. The Agency further objected to the application on 16 September. This objection repeated the development was within a flood risk vulnerability category that was inappropriate to the Flood Zone the application site was located as the site was in Flood Zone 3b functional floodplain.

  9. The Council has provided a copy of the correspondence with Mrs C’s agent during its consideration of the application. This includes an email from the case officer in April advising of two potential issues with the application which were the flood risk and the location of the site in the green belt. Mrs C’s agent suggested the Agency’s objection was arguable when reviewing how much of the site was in Flood Zone 3b. The agent suggested the Council’s information showed the site as being between Flood Zone 3a and 3b but the footprint of the house would be within Flood Zone 3a. There follow requests by Mrs C’s agent for extensions so the flood risk issue can be resolved with the Agency.
  10. The Agency as a statutory consultee continued to object to the development within what it considered to be Flood Zone 3b according to its flood modelling data. This meant the development remained contrary to current national planning guidance. The Council decided after the response from the Agency in September 2019 that nothing further would be gained in terms of assessing the application and offered Mrs C’s agent the choice of either withdrawing the application or having it refused permission. The application was withdrawn in September.
  11. Mrs C complained to the Council and sought clarification about the Flood Zone(s). The Council’s initial response to Mrs C’s complaint in October 2019 says at the time of the pre-application advice the Council’s flood mapping showed the application site to be within Flood Zone 2 with the east of the site within Flood Zone 3. However, when a formal planning application was received in February 2019 the Council’s flood mapping showed most of the site to be within Flood Zone 3. The Council suggested any difference was a result of updating by the Agency. The Council also explained its general flood mapping did not distinguish between Flood Zones 3a and 3b. The Council’s Stage 2 and 3 responses say the site is in Flood Zones 1, 2 and 3 with the majority being in Flood Zone 3.
  12. Mrs C questioned the reasons for any difference between the Agency and LPA information given the apparent use of a common data source named as JBA Consulting Level 1 FRA 2016. The Council explained this data was produced to inform the SFRA in connection with the Council’s draft Development Plan. The data is representative for a particular point in time and the SFRA is not regularly updated to inform decisions on individual planning applications where flood risk issues arise on sites that have not been specifically allocated within a Development Plan for development to take place. The Council says those decisions are informed by advice provided by the Agency as a statutory consultee and the Agency regularly updates its own modelling data on flood zones which is provided to the LPA periodically. It is through the site specific consultations with the Agency that the functional flood plain is identified and which is then taken into consideration by the LPA when making decisions on specific planning applications. The Council notes that applicants can find out directly from the Agency which flood zone their land falls within including the functional flood plain.
  13. During the course of my investigation, the Agency provided the Ombudsman with a copy of the information it provided to Mrs C about the flood risk of the site dated 3 May 2018. The Agency has explained that the functional flood plain 3b is the 1 in 20 year flood event (shown as the 5% AEP event in the flood risk modelling). The Agency says its document confirmed the site was partially within the 5%.

  14. The Agency suggests the FRA appears to have used the model outputs from the River Bourne Model (2011) to determine the site was in Flood Zone 3a and did not consider the River Medway Model (2015). The Agency notes that whilst the area in question is at flood risk from the River Bourne, it is a complex catchment and is also influenced and at risk from the River Medway.

Analysis

  1. The Council’s pre-application advice in March 2018 stated the site was partly in Flood Zones 2 and 3 and made clear it was not binding and that there was not enough information to fully consider the proposal on the grounds of flood risk. The Council suggested the proposed development may be possible but the applicant should consider contacting a flood risk specialist to inform the design and provide a FRA. The Council’s advice was provided in good faith and noted at least part of the site was within Flood Zone 3 and encouraged the applicant to seek further specialist advice. I see no fault in the Council’s approach to its pre-application advice.
  2. Mrs C received detailed information about the flood risk at the site from the Agency in May 2018. This stated the site was in Flood Zone 3. It may have been prudent for Mrs C to seek further advice about the potential impact of any difference in the proportion of the site considered to be in Flood Zones 2 and 3 on a subsequent planning application at this stage.
  3. I note the FRA was not completed until December 2018 and this also highlighted the Agency considered the site was within Flood Zone 3. Despite this the conclusion of the FRA was that development on the site was possible. However, Mrs C’s consultant considered the site this as being in Flood Zone 3a but the Agency confirmed it was in Flood Zone 3b. I have noted the Agency’s comments about the interpretation of its information provided in May 2018 by Mrs C’s consultant and the content of the FRA. This is not a matter for the Ombudsman but for Mrs C and her consultant.
  4. I consider the explanations contained in the Council’s complaint correspondence could have been clearer but I note it remained consistent that at least part of the site was in Flood Zone 3. The issue raised during the Council’s consideration of the application was around the disagreement between Mrs C’s consultant and the Agency as to whether the site was in Flood Zone 3a or Flood Zone 3b. In this respect, the Council was entitled to rely on the expert advice of its statutory consultee on the matter.
  5. There is never any guarantee that a planning application will be approved; all applications are made at risk they will be refused. Mrs C’s costs were incurred with no guarantee of success but she stood to gain significantly in the event planning permission was granted. This is a risk most planning applicants will face.
  6. Based on the information available, I cannot say Mrs C incurred unnecessary costs in pursuing the application because of some fault by the Council and there are no grounds for me to recommend the Council reimburse these. It was the view of the consultant who prepared the FRA and her agent that development was possible. In order to test this Mrs C would have needed to allow the Council to refuse the application and appeal this decision to the Planning Inspectorate.
  7. I have also seen no evidence of undue delay or other fault by the Council during its consideration of Mrs C’s subsequent application. The Council allowed more time at the request of Mrs C’s agent to try and resolve the flood risk issue with the Agency. Ultimately, these efforts were unsuccessful.

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Final decision

  1. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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