Summary: Mrs X complains the Council has not dealt properly with a planning application for development near her home. The Council is at fault because it didn’t consider the planning application properly and failed to acknowledge emails. The Council should apologise to Mrs X, consult with agencies about the drainage, and produce a report for the Ombudsman.

The complaint

1. Mrs X complains the Council has not dealt properly with a planning application for development near her home because it:
• didn’t consult the LLFA (Lead Local Flood Authority);
• didn’t consider the planning application properly;
• didn’t apply a condition requiring drainage measures;
• hasn’t acted as the LLFA to require installation of drainage measures;
• has handled her complaint poorly and provided late responses.
2. Mrs X says she has suffered flooding incidents and had to have building work done to repair damage and provide better flood protection.

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What I have investigated

3. I have investigated that part of Mrs X’s complaint about how the Council has dealt with a planning application. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

8. I spoke to Mrs X about her complaint and considered documents provided by Mrs X. I made enquiries of the Council and considered its response and the supporting documents it provided.
9. Mrs 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

The Council’s Planning Consultation Guide

10. The Council’s consultation guide says the Local Lead Flood Authority (LLFA) should be consulted when a planning application is considered a major application or certain types of application sited within a flood risk area.
11. Within Flood Zone 1, the LLFO should be consulted regarding major developments with surface water drainage including the winning and working of minerals or the use of land for mineral working deposits; waste development; the provision of 10 or more, or a site of 0.5 ha or more for dwellinghouses; the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more, development carried out on a site having an area of 1 hectare or more.

The Town and Country Planning (Development Management Procedure) (England) Order 2015

12. “major development” means development involving any one or more of the following—

(c) the provision of dwellinghouses where—

(i) the number of dwellinghouses to be provided is 10 or more; or

(ii) the development is on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i);

(d) the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or

(e) development carried out on a site having an area of 1 hectare or more

Law, Guidance and Policies

13. The Government’s Planning Portal defines Dwelling and Dwelling house as, “A self-contained building or part of a building used as a residential accommodation, and usually housing a single household. A dwelling may be a house, bungalow, flat, maisonette or converted farm building.”
14. Measor v Secretary of State for the Environment, Transport and the Regions and another found that generally, a caravan would not satisfy the definition of a building, having regard to factors of permanence and attachment.
15. The Council’s Sustainable drainage policy says, “sustainable drainage systems (SuDS) should be considered for all major developments, 10 dwellings ore more (including static and mobile home sites)..”
16. The Council’s Local Plan Policy 26 ‘Flood Risk Management’ says, “Development proposals of 10 dwellings or more or over 0.5 ha should provide a long term water management plan, which includes maintenance of surface water drainage systems, measures to improve the network of surface water drainage systems on and around the site (e.g. culverts etc.) and identifies opportunities and funding for future enhancement.”

The Council’s Complaints Procedure

17. At stage one the Council will normally respond within 10 working days. However, in exceptional circumstances where this may not be possible, it will agree a new timescale with a complainant.
18. If a complainant is not happy with the response at Step 1, they can ask for their complaint to reviewed at stage two. At stage two a complaint will be reviewed by a manager who was not involved in the original complaint. The Council aims to provide a final, detailed response within 20 working days.

What happened?

19. A planning application was submitted for development near Mrs X’s home. The LLFA was not consulted as part of the planning application.
20. The planning application was granted. A condition requiring drainage was not applied meaning there was no requirement on the applicant to implement drainage measures.
21. Mrs X experienced flooding on several occasions between August 2020 and September 2020 at her property, which she says is due to surface water run-off from the development, as a result of inadequate drainage.
22. Mrs X says she experienced further flooding in December 2020. As a result, Mrs X had work completed in January and February 2021 following the flooding incident in December 2020 to protect her house from internal flooding.
23. Between January and May 2021, Mrs X communicated extensively with the Council concerning a range of queries about the development and drainage issues relating to it. The Council treated queries raised by Mrs X as Freedom Of Information requests.
24. A planning enforcement investigation was undertaken. The Council concluded there was no action it could take.
25. In March 2021 Mrs X complained to the Council. The Council responded in April.
26. Following guidance from the Ombudsman, Mrs X complained to the Council again in May. The Council responded to her complaint at stage two of its complaints procedure. The Council did not uphold her complaint.

Analysis

27. The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
28. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, fairly, as a whole, focussing on substance rather than form, and bearing in mind that they are written for councillors with local knowledge. The report does not need to set out and discuss each policy in turn.

Consultation

29. The Council says, “the LLFA was not consulted on [the application] because the site was not within a Critical Drainage Area or within Flood Zone 2 or 3 and was classified as a minor development (i.e. the site area was less than 1 hectare in size). Therefore, consultation with the LLFA was not required in accordance with the Council’s consultation procedures. The proposed development did not represent major development according to the definition set out within Article 2 of the Town and Country Planning (Development Management Procedure)(England) Order 2015.”
30. The development site not located within a critical drainage area, as shown on the Council’s website. It is located within Flood Zone 1. The development site is approximately 0.886 Hectares in size.
31. The Council has considered whether the development comprises dwellinghouses and buildings, including the Measor case. I agree with the Council. On the balance of probabilities, the Council was right that the development did not satisfy the definition of a major development. The Council was not required to consult with the LLFA. This is not fault by the Council.

Planning application

32. Mrs X’s objections to the planning application were recorded and her husband spoke against it at a meeting. The Council was aware of Mrs X’s concerns around drainage and considered them as part of the application.
33. The Council considered a Flood Risk Assessment from 2013 as part of the planning application. It was open to the Council to ask for more information if it considered this insufficient.
34. The Council considered a design statement included with the application which stated, “..no particular flood precaution measures are proposed. Dispersal of water from the development will be by way of ground soakaways therefore this will not lead to an increase from the adopted surface water drains.”
35. The Council considered whether it was necessary to apply conditions to the planning permission it granted, because some were recommended and applied.
36. The officer’s report briefly outlines the planning history of the development site and identifies drainage as one of the grounds of objection. The report identifies Local Plan Policy 26 as being relevant.
37. The officer’s report does not address drainage specifically. There is no evidence that consideration was given to:
• the Council’s sustainable drainage policy.
• the requirement for a long term water management plan, as the development area is over 0.5 ha.
• drainage requirements relating to the planning history of the proposed development site.
38. On the balance of probabilities, the Council did not consider relevant policies properly when it made a decision about the development proposal. This is fault by the Council.
39. I now turn to the question of whether the Council’s decision would have been different had it considered the application properly.
40. The Council included a condition regarding drainage in a previous planning decision regarding a neighbouring site. In that decision the Council was clearly heavily influenced by a consultation response from the Environment Agency.
41. The Council says it could have applied a condition about drainage in hindsight.
42. On the balance of probabilities, the Council would have included a condition requiring drainage measures to be implemented if it had considered the planning application correctly. Had it done so, the Council would have been required to formally consider whether or not to discharge such a condition, including consulting with appropriate agencies.
43. The Council accepts the system installed does not accord with that suggested in the submitted Flood Risk Assessment, which was prepared for a different application.
44. The Council says the drainage that has been installed on the site is suitable and would have been accepted as such in the event that a planning condition had been applied requiring surface water drainage to be provided. The Council has provided evidence it has considered in making this decision. This includes:
• that the form of drainage provided is a common type of sustainable drainage;
• the location the drainage was installed;
• invoices for materials; and
• photographs showing the installation process and materials used.
45. There was a period of time between the planning decision and the installation of the drainage in September 2020, where Mrs X’s property may also have been at greater risk of flooding.
46. I have seen evidence from news reports of ‘biblical’ rainfall across Cornwall in August 2020, on the same day Mrs X says she experienced flooding at her property. I have also seen a video of the development site showing water entering from the northern boundary and flooding the site.
47. The Council has agreed it had limited information on which to base an opinion regarding the suitability of drainage. The Council has not provided any information to show it has considered the SuDS manual (C753) when arriving at its view regarding suitability of the drainage installed on site.
48. I have seen video of Mrs X’s property showing what appears to be problems with water from higher sloped ground as described in the SuDS manual (C753). This indicates the possibility that the drainage installed may not be adequate. It is not possible to determine conclusively without expert opinion.
49. On the balance of probabilities, the drainage measures installed on site may not be suitable. Mrs X remains uncertain whether she will suffer further flooding problems.
50. In the absence of planning conditions having been attached by the Council regarding drainage, the developer may decline to undertake any further drainage work and the Council may have no power to force them to do so. If the developer refused to undertake any further drainage work deemed necessary, Mrs X may be able to take further civil action in respect of this.

Drainage

51. The Council says, “The LLFA does not have powers under the Flood and Water Management Act to act or enforce in this matter. Schedule 3 of the Act which would have given the LLFA enforcement powers has not been enacted by the Government.” The Council is correct. It has no powers to require the installation of drainage. This is not fault by the Council.

Response to Questions

52. There are no specific timescales set out for responses to general enquiries.
53. Mrs X says the Council did not respond quickly enough or fully to her questions about the suitability of drainage installed on site in emails she sent to the Council from January to March. This is not fault by the Council.
54. In a related complaint response, the Council has agreed that it did not acknowledge a number of Mrs X’s emails. This was a failure of service. This is fault by the Council. However, this had no material impact on Mrs X’s circumstances. Mrs X is unhappy with the responses she received. I do not consider that the delay, or the content of any subsequent responses caused Mrs X any injustice.

Complaint Handling

55. The Council’s complaint response at stage one took 10 working days taking into account bank holidays. The Council’s complaint response at stage two took 13 working days. The Council complied with its complaints procedure. This is not fault by the Council.

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Agreed action

56. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X;
• Consult the LLFA and the Environment Agency for formal opinions as to whether the drainage installed on the development site is suitable and sufficient; and
57. The Council has agreed to take the following action within 2 months of this decision:
• On the basis of current available information and the consultation responses, provide a report to Mrs X and the Ombudsman outlining its decision as if it was considering an application to discharge planning conditions regarding drainage, had it applied them.
• If the Council, with the benefit of the consultation responses, decides the drainage is not suitable, it should approach the developer to try to agree any additional works that may be required and also pay Mrs X £2,350 in respect of flood mitigation works that were required to her property.

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Final decision

58. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

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Parts of the complaint that I did not investigate

59. I have not investigated issues around some of Mrs X’s queries which have been responded to as Freedom of Information requests because they are a matter for the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman