Summary: We will not investigate Ms X’s complaint, brought by her representative Miss Y, about the Council’s handling of a planning application for residential properties near Ms X’s land. There is not enough evidence of fault in the planning decision process to warrant us investigating. We will not intervene in the ongoing process for discharging drainage planning conditions, or in a related ongoing planning enforcement matter. We also cannot achieve a key outcome sought by Ms X because we cannot order councils to revoke planning permission.

The complaint

1. Ms X lives near a proposed development of five residential properties. She has a lake on her land. The planning application for the development received conditional permission after a committee hearing in 2020.
2. Miss Y is Ms X’s professional representative. Miss Y complains the Council granted planning permission for the development even though it is not compliant with the relevant conservation regulations.
3. Miss Y and Ms X believe the lake and other important downstream watercourses will be affected by waste water pollution from the site. They want the Council to revoke the planning permission, work with them to resolve the pollution issues, and create a drainage and water treatment scheme which complies with the requirements set down by Natural England, habitat regulations and the Environment Agency.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

Back to top

How I considered this complaint

6. I considered:

• information provided by Miss Y and the Council;
• relevant online planning documents and maps;
• the Ombudsman’s Assessment Code;
• Miss Y’s email and attached letters from her clients to the Council and to a government minister, sent in response to the draft decision.

Back to top

My assessment

7. The 2020 planning permission was granted by the planning committee, with conditions to control the drainage installation. I note it is Miss Y’s view that the permission should not have been granted without the agreed drainage plan already in place. But I do not consider we could say it is fault for a council or its planning committee when acting as the local planning authority (LPA) to grant a conditioned permission, rather than one where all details have been agreed. It is common practice within planning for an LPA’s committee to grant such conditional permissions.
8. If the committee, as the decision-making body here, had disagreed with the officers’ approach and recommendations for the application, it was open to Members to defer the decision and ask officers to gather further information about the drainage issue, or to refuse the application.
9. There is not enough evidence of fault by the Council or its planning committee when considering and deciding the application to warrant us investigating. I realise Miss Y and Ms X disagree with the decision. But it is not fault for an LPA to properly make a decision with which someone disagrees.
10. I have also considered the outcomes Ms X is seeking from her complaint. Her key aim is the revocation of the original planning permission. We cannot order councils to revoke permissions, so cannot achieve this outcome for Ms X. This is a further reason why we will not investigate.
11. The developer’s acceptance of the conditional permission means they have agreed to submit applications to discharge the outstanding drainage planning conditions. It is for officers, in conjunction with relevant environmental consultees, to reach their professional judgement on whether the proposed drainage works are acceptable, once the applicant submits them. We will not intervene in that ongoing process by investigating. If, in future, officers discharge the drainage planning conditions and Miss Y disagrees with their decision, that would be a new complaint about a new Council decision which has not yet been made.
12. I understand from Miss Y that the drainage scheme planning conditions remain unmet, that the developer has started to build, and the Council has determined this is a planning breach and is taking enforcement action. I understand Ms X’s and Miss Y’s concerns here. But we will not intervene in ongoing enforcement action by investigating. It is for officers to decide how to proceed and what action to take. If Ms X or Miss Y disagrees with the Council’s future enforcement approach or actions regarding identified planning breaches, that would also be a new complaint about a new Council enforcement decision.
13. In respect of the discharge of drainage conditions and enforcement actions, any future complaint would first need to go to through the Council’s internal complaint process before we could consider it.

Back to top

Final decision

14. We will not investigate this complaint because:
• there is not enough evidence of fault in the original planning decision process to warrant us investigating;
• we will not intervene in the ongoing process for discharging drainage planning conditions, or in a related ongoing planning enforcement matter;
• we cannot achieve a key outcome Ms X seeks from her complaint.

Back to top

Investigator's decision on behalf of the Ombudsman