Summary: Mr X complained about the Council’s decision to approve a planning application to vary a planning condition relating to land drainage. There was no fault in the Council’s decision making process.

The complaint

1. Mr X complained about the Council’s decision to approve a drainage scheme for a development on land near his home. Mr X said the scheme is inadequate and the development causes ground water flooding on his land.

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The Ombudsman’s role and powers

2. 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 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. (Local Government Act 1974, section 34(3), as amended)
3. 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)
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)

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What I have investigated

5. I investigated the Council’s actions since March 2020. Paragraph 26 below explains why I have not investigated earlier matters.

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How I considered this complaint

6. I read the complaint and invited Mr X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the case officer’s report for the planning committee.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• Climate change and flood risk matters.
10. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. The impact development might have on land drainage can be a significant material planning consideration, particularly on large developments.
13. Even if we find fault in how a council has considered drainage issues during the planning process, it does not mean we will expect the council to provide a significant remedy for the consequences. Though they may choose to defer their decisions until they are ready to make a decision, councils have a time limited opportunity to anticipate what the drainage impacts might be and what measures might help with problems.
14. However, this does not mean councils can be held liable if the measures prove to be ineffective. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

What happened

15. Several years ago, the Council approved a development on land near Mr X’s home. The approval included a planning condition that controlled drainage.
16. The applicant provided details of a drainage scheme that satisfied the Council, and it discharged the planning condition.
17. The drainage scheme was not implemented in accordance with the plans. The applicant submitted a new application to vary the drainage condition. At the first committee hearing to consider the new application, a decision was made to defer the decision to allow time for drainage investigations and for the parties to resolve their concerns about drainage. Mr X said that nothing was achieved during this time.
18. Before a planning decision was made, the Council’s planning case officer considered the application and wrote a report to advise the Council’s planning committee. The case officer report included:
• A description of the proposal and site;
• A summary of relevant planning history;
• Comments from neighbours, expert drainage consultants and other consultees;
• Relevant planning policy and guidance;
• An appraisal of the main planning considerations, relating to drainage issues; and
• The officer’s recommendation to approve the application, subject to planning conditions.
19. The Council considered the information on the planning file, including the case officer’s report, and a range of other views, such as comments from objectors, private consultants and a consultant employed to advise the Council. It also considered other views, including its own drainage experts, the County Council, and the water company.
20. The Council then approved the application to vary the planning condition.
21. Mr X remained unhappy with the decision, as he believed the new development caused increased ground water on his land. He was disappointed the independent consultant did not carry out dye tests and that nothing was achieved by the committee’s decision to defer the decision.

My findings

22. Mr X is dissatisfied with the judgements the Council made relating to drainage issues. He thinks the consultant should have carried out a dye test before giving advice to the Council. He does not understand why the Council deferred its decision, but then went on to determine the application even though the two landowners had not reached agreement on a suitable alternative drainage scheme.
23. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant. We do not comment on the judgements made by councils unless there is fault in the decision making process.
24. Before it made its decision, the Council considered the application, comments from the public and other consultees, planning history, policy and guidance considered relevant. The Council followed the process I would expect and so I find no fault. Because of this, I cannot comment on the Council’s decision to approve the application to vary the planning condition. It is up to the Council to decide if it has enough information to make its decision.

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Final decision

25. I completed my investigation as there was no fault in the way the Council made its planning decision.

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Parts of the complaint that I did not investigate

26. I did not investigate matters that occurred and were known about by Mr X more than 12 months before he brought his complaint to our attention.

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Investigator's decision on behalf of the Ombudsman