Summary: Mr X complained the Authority failed to ensure compliance with planning conditions on a neighbouring development site. He says his land is at risk of flooding if there is an extreme weather event. There is no evidence of fault in how the Authority determined the planning applications and any breaches of conditions on the first planning application have mostly been resolved by the approval of a second planning application. There is fault by the Authority in that it has delayed determining a planning application submitted in August 2019 but this has not resulted in a significant injustice to Mr X.

The complaint

1. Mr X complained the Authority failed to ensure compliance with planning conditions on a neighbouring development site.
2. Mr X says he is left not knowing if the drainage system will cope with a storm event or if their land will flood.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an authority’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)
4. If we are satisfied with an authority’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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Authority and considered the comments and documents the Authority provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. The Authority considered a planning application for the erection of two detached houses on land neighbouring Mr X’s property. The planning case officer prepared a delegated decision report providing details of the proposal and the material planning considerations.
7. The report included a history of the site. It explained it was part of the substantial garden of an existing property. Planning permission had been granted in 2012 but it was not considered the permission was still valid. The Authority had refused a similar planning application in 2017 on the basis it could not demonstrate it would not result in an increased flood risk.
8. Three neighbours, including Mr X, raised objections to the planning application. The objections focussed on the drainage and flooding issues. The Authority consulted with the Lead Local Flood Authority (LLFA) who raised no objections to the application.
9. The report stated surface water drainage and flood risk was one of the main issues for consideration. The report noted that the current application included a surface water drainage strategy and a report on level alterations and impact on flow routes. The Authority noted that despite this additional information the neighbours were still concerned about the proposal in respect of drainage and flooding. The report said the risk of surface water flooding to the proposed development and the implications to surface water flood flows across and near the land, are relevant material considerations.
10. It is noted the application site is not identified by the Environment Agency as being at risk of flooding. However, the Authority accepted there is a sporadic surface water flooding problem on the road which affects the site and has the potential to affect other nearby dwellings.
11. The Authority said it had to be satisfied that the proposed development would not be at risk of flooding and that the development would not cause undue risk to other properties. The Authority noted the site was subject to sporadic flooding caused by run-off from the road during periods of extreme rainfall.
12. The report went on to say that normally an undeveloped site has more capacity to absorb rainfall than a developed site but this was not true in this case due to impermeable clay soils. It said that as the site is essentially impermeable, water deposited on the site will pool or run-off elsewhere rather than percolate through the subsoil.
13. It said the site was not suitable for infiltration type drainage. So it was proposed that surface water would be collected in a series of pipes which would discharge to a hydrobrake chamber. It was considered the flow from the site into the drain would be no greater than the existing situation.
14. The report said that despite the continuing objections from the neighbours, there is no evidence the proposals will ameliorate the existing sporadic flooding but neither was there evidence the development would increase flood risk beyond the boundary of the application site. It concluded with the view that while it could not say flooding would not occur in the future, it considered the risk of flooding would not increase as a result of the development.
15. The Authority granted conditional planning permission and work began on site. The conditions required the development to conform with submitted plans; the houses only to be occupied by persons with a local connection; that no material external alterations should take place without permission; and the development should not be occupied until measures for the disposal of foul and surface water have been installed and fully operational.
16. Two years later a new planning application was considered by the Authority. The report prepared with details of the proposal explained the previous drainage scheme could not be implemented because of a dispute over the legality of discharging water onto the adjacent land.
17. The second application proposed to amend two conditions of the previous planning application so that a new drainage scheme could be approved. This would involve the water collected from the roofs of the new properties to be discharged into a combined sewer. The report pointed out that this was a fresh planning application and the previous application was not amended and remained valid.
18. The Authority again consulted with the LLFA. It responded saying it preferred the original scheme but did not oppose this scheme. Objections were made by two neighbours, including Mr X. While they did not object in principle to the water discharging to the sewer, they felt the scheme was inadequate to deal with surface water drainage. They said the drainage measures were not robust enough to deal with the volume of water on the site.
19. The report for this application in respect of drainage and flooding issues included a lot of the same information as the report for the first application. The report noted an officer had inspected the site with a representative of the LLFA. It was noted the pipes and hydrobrake had been installed though there were some slight discrepancies on exact positions. The Authority said the flow from the site into the drain would be no greater than the situation prior to development.
20. The report said the previously approved scheme was still considered suitable but the agreement of the neighbouring landowner to accept the surface water had not materialised and so it now had to consider if the new scheme was acceptable. It was noted that some surface water will permeate and so for low intensity rainfall events surface water discharge would be minimal. It said all the water from the roofs of the two houses would be directed to the sewer and where there are soft or permeable surfaces, water will percolate or run off to the same degree as prior to development.
21. The Authority agreed with the LLFA that this was not the optimum solution but the higher options on the drainage hierarchy were not achievable and so this proposal was considered acceptable. The report again acknowledged the concerns of the neighbours but it said there was no evidence that this proposal would affect known sporadic flooding in the area.
22. Mr X complained to the Authority raising several areas of concern. The Authority explained that as a result of the second planning application, there were two valid approvals for the site and that the developer could install either system. It also acknowledged that they may hold different views on the merits of the drainage schemes and that they may remain dissatisfied.
23. It was noted that an application for a new driveway was still pending determination and that it would take account of their representations but would not comment further outside of the formal decision making process.
24. In response to the complaint there was a breach of occupancy condition, the Authority accepted it did not investigate this in a timely manner due to workload pressures and the issues related to the COVID-19 pandemic. It said it had made enquiries and was satisfied the occupants met the terms of the occupancy condition.
25. Dissatisfied with the Authority’s response, Mr X complained to the Ombudsman.

Analysis

26. The Ombudsman’s role is to review an authority’s adherence to procedure in making decisions. Where an authority has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on the authority’s behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with the authority’s decision.
27. I am satisfied the Authority followed the correct administrative procedure in respect of both planning applications in this case. Mr X was given the opportunity to make representations and the decision reports clearly show the Authority was aware of, and took into consideration, his concerns about drainage and flooding issues. It then used its professional judgement and took the view the proposed drainage systems were acceptable. As there is no evidence of any administrative fault in how the decisions were reached, I cannot criticise the decisions made. Mr X may take a different view from the Authority about what an acceptable drainage system is for the site. However, a difference of opinion is not evidence of fault.
28. Mr X complains the Authority failed to ensure compliance with some of the planning conditions on the first application. In particular he says conditions two, three, four and nine were not complied with. I will deal with each one in turn.
29. Condition two states the development shall not be carried out otherwise than in conformity with the submitted plans and details. From the information provided it is clear the originally approved drainage scheme was not fully implemented due to a failure to reach an agreement with the adjoining landowner. As a result, a new planning application was made with an alternative drainage system. As explained above, this was properly considered and approved. The developer has chosen to implement the scheme approved by the second application and the Authority is satisfied this has been installed according to the plans.
30. Mr X says the Authority chose to ignore the breach of condition two and allowed the development to continue. The information provided shows any failure to comply with the plans in respect of the first application has been resolved by the approval of the second application and the installation of that approved scheme. While I appreciate Mr X is frustrated by the time taken and that he may not agree that the second application provides a suitable drainage system, I am not persuaded he has suffered a significant injustice as a result. There is nothing to suggest any significant impact on his property. He says his concerns relate to what will happen if there is an extreme weather event.
31. Condition three relates to the occupancy of the properties. The development is within the Lake District National Park and new properties are only allowed if they meet a local housing need. As a result an occupancy condition was added requiring the occupants to have a local connection. The condition is very detailed in terms of how a local connection is assessed.
32. The Authority began an enforcement investigation in January 2020 after a breach of the occupancy condition was reported. The Authority has provided me with information about the actions it took to investigate this matter. As it relates to a third party, I am unable to share the details in this statement.
33. The investigation culminated in the Authority producing a report about the situation. I have seen that report and while there was a delay in the Authority making enquiries about the occupants, it did not find a breach of the occupancy condition and so decided not to take enforcement action.
34. While I understand that Mr X wanted to ensure the Authority enforced all conditions, I am not persuaded that even if there had been a breach of the occupancy condition that this would have caused Mr X a significant enough injustice to warrant any further action by the Ombudsman.
35. Condition four stated that no material external alterations or extension could be carried out to the dwelling house or any hardstanding constructed within the curtilage of the dwelling house without permission. An application was made in August 2019 for the construction of a driveway. To date the application has not been determined. In response to my enquiries, the Authority says that it was waiting for comments from the LLFA and that due to an error it failed to follow this up.
36. The driveway has been constructed even though permission has not been granted. While the failure to determine the planning application in a timely manner amounts to fault, I am not persuaded this has caused Mr X a significant enough injustice to warrant further action by the Ombudsman. It is frustrating and adds to his general view that the Authority is not competent. While I am not minded to make any formal recommendations because of the lack of any significant personal injustice, the Authority may want to ensure it has systems in place to ensure that similar situations do not arise causing delays in determining planning applications.
37. Condition nine said the development should not be occupied until measures for the disposal of foul and surface water have been installed and fully brought into operation in accordance with the approved details. The report prepared to consider the occupancy condition also dealt with this breach of condition. The report accepts there had been a breach of condition nine as one property was occupied prior to the installation of the approved drainage scheme.
38. The report notes that when approving the revised drainage scheme, which had already been installed, no condition was added requiring it to be installed prior to occupation. It says this would have been pointless because the property was already occupied at the time of the decision.
39. Even when a breach of a planning condition is identified, there is no obligation on the planning authority to take enforcement action. While there was a period of non-compliance with the original planning approval, this was resolved by the submission and approval of the second planning application. I find no fault in the Authority’s actions.

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Final decision

40. I will now complete my investigation as there is no evidence of fault causing a significant injustice in this case.

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Investigator's decision on behalf of the Ombudsman