Summary: Mr X complained the Council did not properly consider a planning application for a new footpath. He says this will affect his access in an emergency. We did not find fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to properly consider a planning application to build a new footpath. He says the Council failed to:
• consult with the Environment Agency.
• ask the applicant for an emergency plan for emergency services access.
• identify the proposal requires the removal of several trees and hedges,
• identify the applicant’s drawings were incomplete.
2. Mr X says the new path will cause him significant problems if there is a flood, because he cannot access an escape route.

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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).
5. 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)
6. Mr X’s complaint is late because the Council approved the plan in 2018. But Mr X said he had recently received new information. He also said a later decision by the Planning Inspectorate on the County Council’s order to close the crossing and divert the path had delayed matters. We considered these were good reasons and exercised our discretion to investigate.

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How I considered this complaint

7. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered Mr X’s comments before making a final decision.

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What I found

8. In 2017 the applicant, Network Rail, made a planning application for a new footpath as it intended to close a pedestrian level crossing. Network Raid had planned to close the level crossing for some time due to significant safety concerns. It considered diversions to the original path. Following consultation with the public, the preferred option was a path which passed across Mr X’s land and passed through a culvert, which ran under the railway line. In 2018 the Council approved the plan.
9. Mr X complained in September 2019 about the Council’s decision to approve the planning application for the new footpath. He said that the Council had not complied with government planning guidelines, the National Planning Policy Framework (NPPF). He referred to paragraph 163 which sets out how planning authorities should deal with planning applications in flood zones. He said that he would lose his dry, safe escape route, which was currently over the level crossing. He said that the approved diverted path was within the highest risk flood zone. All other routes from his home passed through flood zones 2 or 3.
10. Mr X said he had raised the issue of safe escape routes with the Council’s planning officer. However, the officer said the Council had complied and the NPPF was a guideline only. Mr X said the Council should have asked the applicant for an emergency evacuation plan. He also said the Council should have consulted the emergency services or the lead flood officer for the area. Mr X stated the Council had not visited the site. He also said the applicant planned to build outside the approved planning permission area. Finally, he said the planning officer had not noticed there were trees and hedges that would need to be removed, but the applicant had not made an application regarding their removal.
11. The Council replied that the development Mr X complained about was a minor development. Therefore, certain requirements that may apply to a major development were not required, this included the type of body to be consulted and certain plans that may be requested such as emergency escape plans. The Council explained it had considered the NPPF principles of sustainable development and referred to the Local Plan and policies it had taken into account when considering the impact of the application. The Strategic Flood Risk Assessment showed the site was in flood risk zone 3, where zone 1 is little or no risk of flooding. It found was likely the culvert would flood 3 to 4 times per year in normal seasonal rainfall.
12. The Council explained that the developer completed a sequential test which considered the risk of the culvert flooding. The test is carried out when a development is in flood risk zones 2 or 3. The test compares the site with alternative sites and identifies the risks of flooding for each. The developer’s sequential test set out 6 alternative sites and options. It stated that it had been undertaken in accordance with the Environment Agency’s guidance set out in “Demonstrating the flood risk Sequential Test for Planning Applications (2012).
13. The Council noted the option it approved had the highest associated risk of flooding from the river, as it was likely it would flood to a depth of 60mm in a 1 in 2 year event. But it considered that the footpath flooding for short periods would be tolerable. The Council said it had consulted the floods team of the County Council, (the Highways Authority). They considered the level of flooding was a tolerable risk given the rural nature of the footpath.
14. The Council said that its file showed the case officer’s photographs of the site. Therefore, it was confident that it visited the site. It had also seen Mr X’s photographs. In closing the Council said that it had considered relevant policy assessing impact in terms of flooding, trees and hedges.
15. Mr X complained further. He said he had contacted the Environment Agency and it stated it believed it should have been consulted because the development was in flood zone 2 or 3. It said it had not seen a Flood Risk Assessment (FRA). It said if it had been consulted it would have initially objected as an FRA would be required. It also said its comments would be focused on ensuring that the flood risk was understood. The risk should not be increased for others, and those using the development would be sufficiently safe. It said it may have suggested emergency planners should be consulted. The Environment Agency said the NPPF details when safe access should be provided, and when the emergency planners should be consulted. However, it noted this particular type of application (provision of a footpath) was not considered. In the guidance, the focus was more on access from a proposed building.
16. Mr X repeated his complaint that the Council had not considered trees and hedges that must be removed. He disputed the case officer had visited the site as there were locked gates. He also said the developer could not build what they had proposed within the area for which they had planning permission. Mr X said the County Council had made the order closing the level crossing but that the Planning Inspectorate was considering this decision following a public inquiry.
17. The Council noted Mr X’s complaint regarding the Environment Agency’s comments. However, it stated that the County Council considered the flood risk was tolerable in view of the rural nature of the site. Therefore, it believed that it had carried out an appropriate level of consultation regarding the matter. It repeated that it considered the case officers visits were adequate.
18. Shortly after the Council’s final response the Planning Inspectorate’s Public Inquiry confirmed the closure and diversion order in respect of the level crossing, with minor amendments. The Inquiry considered the impact on Mr X and his statement that he would not have a safe and dry escape route if the crossing was closed. It accepted the alternative path through the culvert would flood on occasion. It noted Mr X’s points regarding emergency routes but it said it attached little weight to this, as Mr X’s home was not in a flood risk zone and it considered he had four other escape routes.
19. In its response to my enquiries the Council confirmed it did not consult the Environment Agency. It said it “considered the application was minor in character and of a nature which would provide essential transport infrastructure, as submitted by the applicant, having regards to the safety necessity of closing [the level crossing].” It also said that it was aware of the flood zone level, and considered this in the case officer’s report recommending approval.  The case officer consulted the County Council’s Flood and Water team, who confirmed that the proposal was acceptable. The East Suffolk Internal Drainage board also supported the application. 
20. The Council noted the Environment Agency’s comment that a Flood Risk assessment should have been carried out. It confirmed that an FRA had been carried out within the sequential test report.
21. The Council noted Mr X’s complaint that the applicant should have provided an emergency escape plan. However, it said that its records showed the case officer was aware of a vehicular track and footpath which would provide an emergency escape route for Mr X in the event of the new footpath flooding.
22. In respect of trees, the Council said there were no trees within the site which had Tree Preservation Orders and the site was not in a conservation area. It said in any case it had considered the impact on trees in its assessment and had agreed mitigation measures with the applicant which were subject to conditions.
23. Mr X had complained the Council failed to identify the applicant’s drawings were incomplete, and the structure could not be built within the area for which the Council granted permission (the “redline”). The Council responded that without further information it could not comment whether the plans are incomplete as alleged.

Analysis

24. I have considered Mr X’s complaint that the Council should have consulted with the Environment Agency. The Council considered the development was minor in character and nature, and provided essential transport infrastructure, taking into account the safety necessity of closing the level crossing and providing an alternative route. But it said it was aware of the flood zone the site was in and it considered this when making its decision. The Council did consult the County Council Flood and Water Team who confirmed the likely annual flood level was tolerable, and the East Suffolk Internal Drainage board who supported the plan.
25. I consider that the Council’s view it was not necessary to consult the Environment Agency was correct in view of the nature of the development. The Council was aware of the flood issues and considered these. The applicant provided a flood risk assessment as part of the application and carried out a sequential test. The Council consulted the County Council’s Flood and Water Team, who did not raise any concerns.
26. Even if I had found fault here and the Council should have consulted the Environment Agency, the comments the Agency says it would have raised were in any case considered by the Council. The Agency said it would have objected as there was no apparent FRA. However, there was an FRA which detailed the likely flood risks. The Agency said its comments would have been focused on ensuring the flood risk was understood, and risks to those using the development and emergency access issues. However, it also noted that “this specific scenario” (the diversion and building of the footpath) was not considered, in the guidance as it was focused more on access from a proposed residential building. So, while I note Mr X’s view that the Council should have required an emergency access plan, this requirement is for access from residential developments in a flood risk zone, which is not the case here. Therefore, I do not consider that the outcome would have changed if the Council had consulted the Environment Agency, as the Council considered relevant matters. The Planning Inquiry did at a later date, consider Mr X’s claim that he would not have a safe emergency access route, but did not accept this.
27. I have not found fault regarding Mr X’s complaint that the Council did not notice the proposal required the removal of several trees and hedges. There were no Tree Preservation Orders, and the Council considered the impact on landscape and applied a condition regarding protected wildlife.
28. I have not considered whether the Council was at fault regarding Mr X’s complaint that it did not identify the applicant’s drawings were incomplete. The Council has not specifically commented as it is not clear which element of the plan is incomplete. It also appears the issue may relate to boundary disputes which would not in any case be a matter that the Ombudsman can consider as it is likely a private legal matter decided by a court.

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Final decision

29. I have not found fault by the Council. I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

30. I cannot investigate the Planning Inspectorate’s decision to confirm the order closing the level crossing route and agreeing the diversion. This is outside the Ombudsman’s jurisdiction. Therefore, any matters relating to that decision including the impact on Mr X due to the closure of the crossing and diversion of the footpath are not matters we can investigate.

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Investigator's decision on behalf of the Ombudsman