Summary: Ms X complains the Council failed to consider the impact on her property's amenity caused by raised ground levels at a new development near her home. Ms X also complains the Council failed to take account of the advice of the Lead Local Flood Authority (LLFA) regarding a permeable rainwater storage tank near her property. The Council’s failure to record the reasons for its decision to discharge a planning condition amounts to fault. However, this fault has not caused Ms X an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complains the Council failed to consider the impact on her property's amenity caused by raised ground levels at a new development near her home. Ms X also complains the Council failed to take account of the advice of the Lead Local Flood Authority (LLFA) regarding a permeable rainwater storage tank near her property.
2. Ms X fears flooding due to the water tank's location and it being 2 metres higher than her property. Ms X also says the development affects her property's amenity because it 'towers over' it, due to the raised ground levels.
3. Mr Y is assisting Ms X in making this complaint.

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What I have investigated

4. I have investigated the way the Council discharged conditions relating to site levels and drainage at a site next to Ms X’s home, but not the original decision to grant planning permission.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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.
6. 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)
7. 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

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr Y;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr Y; and
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

9. A few years ago, the Council granted planning permission, subject to conditions, to build new houses on a site near to Ms X’s home. One of the conditions required the developer to provide details of the existing and proposed levels of all buildings and levels of the site for the Council’s approval. The Council imposed this condition in the interests of residential and visual amenity.
10. The Council also imposed conditions in relation to drainage at the site. These conditions were to prevent environmental and amenity problems arising from flooding, to prevent an increased risk of flooding and to ensure the satisfactory maintenance of unadopted drainage systems.
11. Ms X did not object to the application at the time. She states she was unaware until work started at the site that the land levels would rise.
12. Shortly after the Council granted planning permission the developer applied to discharge the conditions. There is no requirement for councils to publicise applications to discharge decisions, and councils should determine these applications within eight weeks of validating them. In this instance the Council wrote to the developer setting out its decisions on the conditions 18 months later.
13. In considering the proposed levels, the Council consulted its Urban Design officer. The officer confirmed the finished floor levels were acceptable in design terms and supported the discharge of this condition. The letter to the developer refers to the Urban Design officer’s comments and confirms the condition is discharged. But does not provide any other details of how the Council decided the site levels were acceptable.
14. Ms X complains the Council failed to consult her or consider the impact on her property's amenity caused by the raised ground levels when it discharged this condition. Ms X says the development affects her property's amenity as the raised ground levels mean it 'towers over' it. Mr Y states the new dwellings closest to the boundary of Ms X’s property look directly into her garden and that the headlights from vehicles in the new car park shine into Ms X’s garden.
15. As part of its consideration of the drainage conditions, the Council consulted Anglian Water and the Lead Local Flood Authority (LLFA). Anglian Water confirmed that foul water and surface water drainage strategies had been identified and approved. As they had not been fully implemented, Anglian Water recommended part discharge of three of the conditions.
16. The LLFA asked for drainage calculations to demonstrate the design does not increase the risk of flooding. The developer did not provide this information.
17. The Council’s letter to the developer regarding the conditions to be discharged refers to these drainage conditions. The letter notes Anglian Water’s comments and recommendation and notes the LLFA opposes the revised drainage system but does not give the Council’s decision on whether the conditions are discharged.
18. Before the Council issued a decision on the discharge of the conditions, the developer applied to vary some of the conditions, including one of the drainage conditions. They wanted to replace the planned dry pond with underground cellular storage crates. The LLFA objected to this proposal as the Council’s Supplementary Planning Document required the design and lay out of a site to try and manage and convey surface water above ground, avoiding the use of underground piping as far as possible.
19. The Council approved the application to vary the drainage condition. The case officer’s report states that whilst the cellular storage crates are not the preferred option of the LLFA, it is an acceptable drainage solution.
20. Ms X is unhappy with the Council’s decision and complains the Council failed to take account of the advice of the LLFA regarding a permeable rainwater storage tank near her property. Ms X fears flooding due to the water tank's location and it being 2 metres higher than her property.
21. Mr Y complained to the Council on Ms X’s behalf and is not satisfied by the Council’s response. He has asked the Ombudsman to investigate his complaint. In response to my enquiries the Council states that in considering the conditional discharge applications officers had due regard to the impact of the finished levels on the residential amenity of nearby properties. It also notes the Urban Design officer did not object to the discharge of the condition.
22. The approved plans show the existing levels on the site and the immediate surrounding levels, as well as the proposed finished floor and site levels. The Council states this enabled officers to carefully consider the existing relationship between the site and surrounding properties, and the extent of the proposed increase in site levels. The Council acknowledges the levels have increased on the site but does not consider they have a significant adverse impact on the amenities of the surrounding properties.
23. There are a range of levels within the site with the highest levels generally in the centre of the site and lower levels towards the periphery. The change in land levels relating to the buildings closest to Ms X’s property was 0.23. The Council states that the new dwellings closest to Ms X’s property do not overlook Ms X’s property and are set back between 10 and 6.7 metres from the boundary. While these properties sit higher than Ms X’s, the Council states the gardens drop in height towards the boundary and are at a similar level to neighbouring properties. It considered the proposed site levels and finished floor levels, in conjunction with the design and orientation of the dwellings were acceptable with regard to residential amenity.
24. Officers did not visit the site when assessing the proposed levels but have since visited and are satisfied the levels are in accordance with the approved details.
25. In relation to the discharge of the drainage conditions, the Council states the LLFA did not object to the technical and engineering specification for the proposed below ground storage. Rather, the LLFA did not agree with the justification for using below ground storge. In the absence of a technical objection the officer followed due process and justified the use of a below ground storage solution in their delegated report. The Council then discharged the condition.

Analysis

26. The Openness in Local Government Bodies Regulations 2014 requires councils to provide a written record of certain decisions made by officers. The record should include a record of the decision taken along with the reasons for the decision.
27. The Council’s records show the Urban Design officer considered the finished floor levels were acceptable in design terms, but do not explain why. Nor is there a record of how the case officer considered the proposed levels or why they were acceptable.
28. The Council has since confirmed the case officer and Urban Design officer reviewed extensive details of existing and proposed levels on the submitted plans and concluded the levels would be acceptable. The Council does not consider the increase levels have a significant adverse impact on the amenities of the surrounding properties. But there is no contemporaneous record of this consideration at the time it discharged the condition. I consider this amounts to fault. There should be a record not just of the decision taken, but also the reasons for the decision.
29. It is unclear from the Council’s discharge letter to the developer whether it has in fact discharged the conditions relating to drainage. The letter states it provides the Council’s decision on each condition, but in relation to the drainage conditions, it only provides the views given by third parties. It does not state whether or not the case officer is satisfied any of the drainage conditions are discharged, or why.
30. I would expect there to be greater clarity around the Council’s decisions on the discharge of conditions. While the Council must take account of consultee responses, it must also make its own decision on whether the condition is discharged.
31. The case officer’s report for the application to vary the conditions acknowledges the LLFA would prefer above ground storage, but concludes the cellular storage is an accepted drainage solution and there is provision for management and maintenance. The officer considered the omission of the dry pond and the inclusion of underground cellular storage crates would not harm the general character of the development and wider area. This is a decision the Council is entitled to make and there is no evidence of fault. As set out above, it must take account of consultee responses, but it is not bound by them, and must make its own decision.
32. Ms X is unhappy she did not have the opportunity to comment on the changes in site levels, but councils are not required to publicise applications to discharge conditions in the same way they must publicise applications for planning permission. The planning committee did not ask that the discharge of conditions be brought back to the committee to decide. It was therefore appropriate for officers to consider the application to discharge conditions under delegated powers.
33. Having identified fault in the Council’s record keeping, I must consider whether this has caused Ms X an injustice. The question for me is whether the Council’s failure to record its reasons for the decision to discharge the site level condition calls into question that decision. I am not persuaded it does. In considering the plans submitted to discharge this condition, the officers would have been aware of the extent to which the levels across the site would change, and how the new levels would relate to the surrounding levels and properties. There is no dispute the site levels have increased, and the Council has retrospectively explained why it considers the proposed site levels were acceptable. I do not therefore consider the fault calls into question its decision to discharge the condition.

Agreed action

34. The Council has agreed to review its procedures to develop a simple and efficient way to succinctly record reasons for approving applications to discharge conditions. The Council should take this action within three months of my final decision and explain to the Ombudsman the action it will take to improve its performance in this area.

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Final decision

35. The Council’s failure to record the reasons for its decision to discharge a planning condition amounts to fault. However, this fault has not caused Ms X an injustice.

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Parts of the complaint that I did not investigate

36. I have not investigated Ms X’s concerns about the way the Council considered the impact on her amenity when it granted planning permission for a housing development near to her home.
37. We expect people to make a complaint to us within one year of them thinking the Council has done something wrong. We can make an exception to that requirement if we think there are good reasons why the complaint was not made sooner, and we consider that we could still carry out an effective investigation. The Council approved the development several years ago and it was open to Ms X to raise her concerns with the Ombudsman at that time. I do not therefore consider it appropriate to exercise discretion in this instance.

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Investigator's decision on behalf of the Ombudsman