Summary: Mrs X says the Council failed to inform her that a sequential test was necessary before she submitted a planning application. There was fault by the Council because the planning officer Mrs X consulted was unaware of the sequential test requirement. The complaint was closed because the Council already acted to remedy the injustice to Mrs X.

The complaint

1. I refer to the complainant here as Mrs X. Mrs X says the Council failed to inform her that a sequential test was necessary before she submitted a planning application.
2. Mrs X says the Council should have told her to have a sequential test done before she paid out for other surveys, assessments and plans. Mrs X says she wasted thousands of pounds unnecessarily due to the Council’s negligence in not giving her the advice she paid for.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I examined the complaint and background information provided by Mrs X and the Council. I discussed the complaint with Mrs X by telephone.
6. I sent my initial thoughts on the complaint to Mrs X and the Council and invited their comments on it. I considered the Council’s comments in reply.

Back to top

What I found

Government guidance on flood risk assessments

7. Government guidance on flood risk assessments is set out by the Environment Agency and the Department for the Environment, Food & Rural Affairs.
8. The guidance states that an applicant may need to carry out a sequential test as past of a flood risk assessment. The sequential test compares the site proposed to be developed with other available sites to find out which has the lowest flood risk.
9. A sequential test is necessary if both of the following apply:
• The development or land is in flood zone 2 or 3;
• A sequential test has not already been done for a development of the type that is proposed on the site.
10. A sequential test is not necessary if one has already been carried out for a development of the type planned for the site.

Background

11. Mrs X sought pre-application advice from the Council on her intended development. She paid a fee. Amongst other matters, the Council provided advice on flooding.
12. The advice stated Mrs X’s land was within flood zone 3b and so a flood risk assessment would be required to be submitted with a planning application.
13. It was then for Mrs X to arrange a flood risk assessment and for that to be submitted to the Council as part of a planning application.
14. Mrs X received a quote from a flood risk company. The arrangement had been made by her architect. Mrs X was concerned about the cost quoted by the company which included hydraulic modelling exclusive of VAT and other third party costs. So she approached the planning officer who had dealt with her pre-application advice. Mrs X says she asked the officer whether the extent of work stated in the quote needed to be carried out and the officer said no, a flood risk assessment was needed.
15. Mrs X then completed a flood risk assessment and submitted it to the officer. The officer told Mrs X the flood risk assessment was ‘sufficient for a planning application’.
16. The Environment Agency objected to Mrs X’s application. It said the flood risk assessment did not comply with the requirements for site specific flood risk assessments.
17. Mrs X then contacted another company to do a new flood risk assessment. The company asked her whether she had passed the sequential test. Mrs X says she had never heard of the test up to that point. She says neither the planning officer nor the Environment Agency had ever mentioned it.
18. Mrs X contacted the planning officer about the sequential test. The planning officer admitted she did not know about the sequential test. Mrs X says the planning officer did not inform her of the test and this jeopardised her planning application and cost her a lot of money.
19. The Council accepted the planning officer gave Mrs X incomplete advice. It offered Mrs X a remedy involved a refund of the pre-application advice fee, the planning application fee, and a sum of £400 for the distress she suffered.

Finding

20. Councils should act in good faith and with due diligence in providing pre application advice. They should be aware of local planning policies and the supporting information necessary such as flood risk assessments. But councils are also not agents or consultants for prospective developers.
21. Taking matters in turn, the formal pre application advice the Council gave Mrs X on flooding was adequate to have alerted her to the need for a sequential test as part of a flood risk assessment. It was sufficient for a lay person such as Mrs X to approach a professional person or organisation to arrange a flood risk assessment. Any professional person or body should then know that in compiling a flood risk assessment of land within flood zone 3 a sequential test is a statutory requirement. Neither the company Mrs X approached nor her architect were aware of the requirement. That Mrs X did not know of it at that stage is not due to fault by the Council or a defect in the advice it gave her.
22. Mrs X approached the planning officer over the quote she was given for the flood risk assessment. She asked the officer whether the level of work quoted was necessary. I cannot now comment on their meeting or what was said during the meeting. There is no independent corroborating evidence to attest to what was said.
23. Mrs X then sent a flood risk assessment to the planning officer who said it was ‘sufficient for a planning application’. This is where there was fault by the Council. The planning officer should have been aware of the need for a sequential test as part of the flood risk assessment. The officer was not.
24. Does this then lead me to conclude the Council was responsible for Mrs X’s submission of a planning application without the full flood risk assessment? No, it does not. Mrs X, her agent or architect, or the flood risk company she appointed all could have familiarised themselves with the flood risk requirements given the Council had already pointed out the land was within flood zone 3. This is particularly the case for the company she appointed to draft the flood risk assessment. The planning officer’s error compounded a bad situation. It did not create it.
25. Given the planning officer’s omission, I find fault by the Council.
26. Where we find fault by a council we must go on to consider the injustice and a possible remedy for the injustice.
27. I am satisfied the remedy previously offered by the Council is a satisfactory one that takes proper account of its failing and the Ombudsman’s guidance on remedies.
28. The Council should now make the offer to Mrs X. Mrs X may refuse the offer if she considers it inadequate. She may have the option of legal action against the Council.

Back to top

Final decision

29. I completed this investigation and upheld the complaint. The complaint was closed because the Council offered a satisfactory remedy to Mrs X.

Back to top

Investigator's decision on behalf of the Ombudsman