Summary: The complainants say the Council failed to act when a developer for three different sites built up the site levels which created additional flooding. Part of the complaint is outside the Ombudsman’s jurisdiction. There is no fault by the Council in the remainder of the complaint.

The complaint

1. The complainants, whom I shall refer to as Miss B and Mr C, complained the Council:
• wrongly allowed inappropriate building developments on floodplains;
• failed to consider the impact those proposals would have on local residents and businesses;

• wrongly allowed the developers to increase the site levels; and
• failed to act when the developers increased site levels beyond the levels approved in the planning permissions.

2. Miss B and Mr C say failures by the Council has caused additional flooding which has affected their mental health and they have suffered damage to their properties.

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What I have investigated

3. I have investigated that part of the complaint about how the Council dealt with planning enforcement issues. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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 Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Miss B and Mr C disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
6. 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

7. As part of the investigation, I have:
• considered the complaint and Miss B and Mr C's comments and the documentation they provided;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B, Mr C 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

What should have happened

9. The Council’s planning enforcement policy says the Council will attempt to resolve breaches through negotiation in the first instance and formal enforcement action will be taken where it is considered expedient. The Council’s enforcement policy makes clear action is not necessarily taken just because the development is not in complete accordance with the planning permission.

What happened

10. Miss B and Mr C are concerned about the developer increasing site levels for three different sites for which the Council granted planning permission. Miss B and Mr C say as a result of those planning permissions they now experience flooding from the site.
11. The Council granted planning permission for the first site in 2006. As part of that planning permission the Council approved the developer’s plan to raise the site levels by more than two metres to prevent flooding.
12. The Council granted planning permission for the second site in 2012. As part of that planning permission the Council approved the developer’s plan to increase ground levels by between 450 mm and 900 mm. That was again to prevent flood risk. The developer for that site has subsequently submitted a new planning application which includes a topographical survey. The Council is satisfied that topographical survey shows the levels on site broadly in line with the levels permitted by the first permission, taking into account the fact that the site is still a development site and therefore has some individual stockpiles of material.
13. The Council granted planning permission for a third site in 2016. The Environment Agency raise no objections to that application. Following the grant of permission it became clear there were some inconsistencies between the levels shown on the approved plans and in the flood risk assessment. The Council initially served an enforcement notice on the developer. It then negotiated with the developer and the developer acquired an additional area of land for flood attenuation. The Council is satisfied with that and does not intend to pursue enforcement action.

Analysis

14. Miss B and Mr C say the Council failed to act when the developer for three different sites built up site levels which has created additional flooding. For all three applications I am satisfied the grant of permission included permission to build up the site levels. It is clear from the documentation submitted with the applications that the intention of increasing the height of the site was to address flood risk issues. I am therefore satisfied the fact the various developers have built up the site levels is due to the grant of planning permission. So, the Council can only consider taking enforcement action if the developer has built up site levels beyond that approved as part of the three permissions.
15. I understand Miss B and Mr C have concerns about whether it was appropriate to build up the site levels given I understand their properties sit at a lower level. Miss B and Mr C say as a result of the land levels being built up they have experienced more flooding. While I understand that concern, this relates to the original grants of planning permission for the three sites. I explain in paragraph 19 why I am not investigating how the Council considered those planning applications.
16. Miss B and Mr C have said though that the developer has increased site levels for all three sites above the levels approved. For two of those sites the Council has received a further planning application which has included a topographical survey showing the level of the site. Those topographical surveys satisfy the Council the developer has not increased site levels beyond those approved as part of the planning permission. In one case the topographical survey is supported by a photograph of the site in 2020 which satisfies the Council the levels do not exceed those approved as part of the planning permission. I appreciate Miss B and Mr C may take a different view. However, as I said in paragraph 5, it is not the Ombudsman’s role to comment on the merits of the decision reached without fault. As the Council considered updated topographical surveys and a photograph of one of the sites before determining the two sites do not exceed the levels allowed as part of the planning permission I cannot criticise the Council for not pursuing any further action in those cases.
17. The situation is slightly different for the third site. Following the grant of planning permission it became clear there were differences in site levels between the flood risk assessment and the approved plans. That resulted in a dispute between the Council, Environment Agency and the developer about whether the development was at the right height. Those issues predate the period I am investigating. So, while I note the Council served an enforcement notice and negotiated with the applicant to secure additional land for flood attenuation, I cannot comment on the Council’s actions during that period as they fall outside the Ombudsman’s jurisdiction for the reasons set out in paragraph 20. It is clear though the Council is satisfied the mitigation measures undertaken by the applicant mean the development as built is acceptable in planning terms even though it may not match the planning permission. I recognise Miss B and Mr C are likely to strongly disagree with the Council’s view. However, the Council’s enforcement powers are discretionary. What that means is the Council is under no obligation to take enforcement action even if there is a clear breach of planning permission. In this case the Council does not consider enforcement action necessary as it is satisfied with the scheme as built. As I have made clear, it is not my role to comment on the merits of that decision, no matter how much Miss B and Mr C disagree with it. That is because I have found no evidence of fault in those parts of the process which the Ombudsman has jurisdiction to consider.

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Final decision

18. I have completed my investigation and do not uphold the complaint.

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Parts of the complaint that I did not investigate

19. I have not investigated Miss B and Mr C’s concerns about the grant of planning permission for the development on the three sites or their concerns about the Council approving an increase in site levels as part of those permissions. That is because the planning permissions were granted in 2006, 2012 and 2016. As I said in paragraph 4, the Ombudsman will not normally consider a complaint about matters which occurred more than 12 months ago. That restriction applies to each of the planning permissions granted. I see no reason why Miss B and Mr C could not have complained about the grant of planning permission within 12 months. I am therefore not exercising the Ombudsman’s discretion to investigate how those planning permissions were granted. It follows I therefore cannot comment on the decision to allow increased site levels for the three sites.
20. Nor am I investigating Miss B and Mr C’s concern about the Council’s negotiations with the developer for the third site which resulted in the developer acquiring additional land for flood attenuation. I am satisfied that happened in 2018 and again, I see no reason why Miss B and Mr C could not have complained to the Ombudsman at the time. I am therefore not exercising the Ombudsman’s discretion to investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman