Summary: Mr B complained that in approving planning applications for development near his property, the Council failed to properly assess the impact on surface water drainage and potential flooding of nearby properties including his. We have not found fault with the Council’s actions.

The complaint

1. Mr B complained that Darlington Borough Council (the Council), in approving planning applications for development near his property, failed to properly investigate and assess the impact of the proposed development on the surface water drainage affecting the existing properties including Mr B’s. In particular it failed to require the developer to carry out any modelling or analysis of the existing surface water flows to justify its view that the houses would not affect those existing flows. Since Mr B’s complaint the Council has carried out an enforcement investigation but has only looked at the ground levels of the gardens and not the whole development. Mr B disputes the Council’s conclusion that the ground levels have not been altered. He believes the flooding around his property following storms in 2020, supports his view that the surface water flows have been altered and now pose a significant flood risk to his property. He says the recent flooding report he commissioned also supports this view.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B 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

Planning process

5. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
6. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’.
7. Councils can take enforcement action if they find planning rules have been breached.

Lead Local Flood Authorities (LLFA)

8. LLFAs are county councils and unitary authorities. They lead in managing local flood risks, such as risks of flooding from surface water, ground water and ordinary (smaller) watercourses. LLFAs undertake a statutory consultee role providing technical advice on surface water drainage to local planning authorities for major developments (10 dwellings or more).

Council planning policy

9. The Council’s Policy CS16: Protecting Environmental Resources, Human Health and Safety, says that development will be located in areas of lowest flood risk and development proposals must include an assessment appropriate to the type and extent of impact and any associated risks to the satisfaction of the relevant environmental body. Proposals will only be permitted where the impact and risks are or can be mitigated appropriately for the proposed risks

What happened

10. Mr B lives near some land which historically has had surface water drainage problems. This had not caused any significant flooding near his property due to adequate drainage routes. The site is designated as low flood risk on the Environment Agency maps (zone 1).

Outline application

11. In 2017 the Council approved outline planning permission for a small development of houses on a site near to Mr B’s property. As part of the decision-making process, the Council consulted the water authority and the LLFA, along with interested residents. Due to the small size of the development the Council was not required by law to consult the LLFA. The LLFA advised that the drainage proposal to use soak-aways as the primary method of surface water disposal was not suitable and connections to the main foul and surface water systems would be required. The Council added a condition to the planning permission requiring a drainage strategy to be submitted and approved before construction began.
12. In 2018 there was flooding in the field behind Mr B’s property, but the water stayed in the field and did not affect his property.

Reserved matters application

13. In late 2018 the Council considered and approved the reserved matters application. Mrs B presented information and spoke to the Committee. The report to Committee shows that many objections and comments were raised about surface water and flooding. The Committee members noted the objections made by residents (including Mrs B) regarding flood risk and asked the Council to notify the residents when the drainage details were submitted to discharge the relevant condition. This was not a usual requirement as neighbours are not normally notified of discharge of condition applications.

Discharge of drainage condition

14. The application including the drainage details was submitted and considered in early 2019. The Council again consulted the LLFA who advised that the proposed soak-aways were not suitable. The applicant then submitted amended drainage details proposing to connect the drainage to the water authority’s sewer network for both foul and surface water drainage. The LLFA said it had studied the Environment Agency’s Surface Water Flood Maps and visited the site. It considered the introduction of the drainage system would improve the surface water drainage. It said it was satisfied that the proposed development would not increase the existing flood risk at the site.
15. The Council approved the application.

2020

16. By 2020 the houses were largely constructed.
17. In February 2020 after two storms, water pooled on Mr B’s patio and flooded his neighbour’s garage. To protect his property Mr B placed 28 sandbags round the rear of his property for the next two months. He and his neighbour raised the issue with the Council.
18. The LLFA visited the site and advised that as part the construction of the properties a large amount of soil was present in the rear gardens of two of the plots. It felt this might be contributing to the surface water run-off.

Enforcement investigation

19. At the beginning of April 2020, the Council agreed to open an enforcement investigation to consider whether the ground levels had been raised. As part of its discussions with the LLFA over the investigation it said:

“The proposed dwellings and the hard-standing areas were positioned outside of the flow route so they are not the problem.”

20. The Council contacted the developer to explain the concern about possible raised ground levels in the gardens and fencing impeding the natural surface water flow. It also contacted Mr B, who raised further issues with surface water run-off from a newly-constructed path between two of the plots.
21. The developer responded explaining that during the construction stage, several spoil heaps grew on the rear of the plots as a result of foundation excavation. The material had been used for some backfilling but had now been removed from the site. The ground levels had been restored to their former position and this was supported by several photographs
22. The Council wrote to Mr B at the end of April 2020 to say it was satisfied that the ground levels had not been raised. It also said it would visit once COVID-19 restrictions allowed.
23. Officers visited the site in May 2020 and met the developer. The developer provided a statement and photographs regarding the site levels and drainage strategy. They highlighted the existing surface water flows through the site with reference to the Environment Agency maps and the plans of the site pre-construction. The developer also said:
• The risk of surface water flooding at the site was low.
• The existing surface water flow path through the site generally flowed in a north-west to east direction.
• No boundary walls were proposed that could divert flows.
• Most of the landscaping was soft or permeable with only limited impermeable patio areas.
• None of the features in the garden or driveway would directly obstruct the flow of surface water.
• Where flows interacted with new structures, landscaping levels would be maintained to deflect water around them to continue the original flow-path.
• Works would be undertaken to match the existing site levels, so not affecting the existing general flow path and a topographical survey had been done on the site to ensure the levels were maintained.
24. Some of the photographs showed that the land to the front and rear of the site still flooded in the same way as before the development was completed. The developer agreed to reduce the level of a footpath between the plots and to take off a layer of topsoil before landscaping the gardens to ensure the original ground level was maintained.
25. Officers also visited Mr B, viewed his property and discussed the problems he had experienced.
26. The Council was satisfied that the land levels had not been raised and gaps had been created under the fences to allow for natural water flows. In addition, the developer had agreed to lower a footpath which was higher than the original ground level.
27. The Council sent all the information to the LLFA and asked for its opinion. The LLFA replied noting:
• There was an existing land drainage problem at the site, which should be resolved by the land-owner not the developer.
• The LLFA when considering a planning application has to be satisfied that the proposed development will not increase existing flood risk to the area or impede the natural flow path of surface water run-off.
• The additional surface water run-off generated by the increase in impermeable surface area will be collected and directed to the water authority’s main drainage system, so the LLFA was satisfied that the development had not increased surface water run-off and it may in fact have resulted in a decrease as the site would now be positively drained.
• The existing ground levels had not been changed so the natural surface flows had been maintained. But as no measures had been taken to improve the land drainage of the field it is highly likely the area will continue to flood as it did prior to the development of the site.
28. It concluded by saying in its view the natural surface water flows highlighted on the Environment Agency maps had not been affected by the development and the original flow path had been maintained through the development site. So, the LLFA was satisfied that the development of the site had not increased the existing flood risk in this location.
29. The Council wrote to Mr B on 2 June 2020 explaining its decision that the existing ground levels had not changed and the development had been constructed in accordance with the plans. It agreed with the views expressed above by the LLFA. It said the developer was reducing the height of the footpath in the next few days.

Complaint

30. Mr B strongly disagreed with the Council’s conclusions and wrote back to the Council with a series of questions. The Council responded to these in July 2020.
31. In August 2020 Mr B responded to the Council’s further points indicating he still disagreed that garden levels had not been altered, the fences will impede the water flow and the Council had now created a civil dispute between him and his neighbours. He asked the Council to carry out a land survey to check the ground level issue.
32. The Council said it would consider any further information he provided. But it considered the development had been constructed in accordance with the planning permission and had not made the flooding situation worse. It did agree to check that all the boundary fences had gaps to allow water to flow. It visited the site again in August 2020 and the developer subsequently raised some of the fencing to create a gap.
33. Mr B made a second complaint in August 2020.
34. In November 2020 Mr B installed protective barriers on his patio at a cost of over £1000.
35. Mr B continued to complain about the Council’s view of the problem and said storms over the winter confirmed that the flow routes had changed. In April 2021 the Council carried out a stage two investigation. It apologised for not responding to his complaint at stage one but upheld the Council’s actions in respect of the enforcement investigation.
36. In 2021 Mr B commissioned an independent survey of the natural surface water flows. It cost £8,000 and he believes the Council should have obtained one at the outset. He says it proves his view that the surface water has been displaced by the development and the Council did not do enough to ensure there were adequate drainage arrangements.
37. The Council has seen the independent survey report but says it does not change its view of the impact of the original development on the surface water flows, because the data provided has limited accuracy in terms of determining any changes in flood depth.
38. In a more recent application for minor development on land adjacent to the site the LLFA has objected to development on the grounds it will increase the flood risk to the gardens of the new houses. The Council refused the application: it says this is because the site lies outside the previous application site and was not covered by the existing drainage strategy.
39. The refusal was then overturned on appeal. The Planning Inspector in his decision noted the LLFA’s view that more detailed modelling was needed. But he also noted that policy CS16 required an assessment appropriate to the extent of the impact and the associated risks. In his view the impact and risk appeared limited, and the level of detail submitted was appropriate and he was satisfied that the appeal location was suitable for the proposed development.

Analysis

40. It is not my role to decide whether or not the development has increased the risk of flooding to Mr B’s property. It is my role to consider whether the Council acted reasonably in approving the drainage strategy, based on the information it had and in concluding there was no breach of planning control in respect of the ground levels.
41. I have not identified fault in the way the Council approved the drainage strategy. As part of the outline permission, it sought advice from the LLFA (outside of the statutory requirements) and included a condition requiring the drainage strategy to be submitted and approved before construction started. The Council again consulted the LLFA when the developer submitted the drainage details and the LLFA recommended amendments, showing the LLFA was focussed on reducing any flood risk.
42. Once it had received the amended details, the Council consulted again with the LLFA. The LLFA visited the site, studied the relevant flood maps and concluded the proposals were acceptable as it did not consider they would increase the flood risk. As the LLFA (with the expertise on assessing flood risk) was satisfied with the proposals, the Council had no reason to ask the developer to provide more information about the water flows.
43. I understand Mr B disagrees with the conclusions reached by the Council and has spent a significant amount of money on a private report challenging the Council’s view that the original development would not increase the risk of surface water flooding. But I have not found fault with the way the Council reached its conclusions. Policy CS16 requires the Council to make an assessment ‘appropriate to the type and extent of impact and any associated risks to the satisfaction of the relevant environmental body’. Given the small size of the development and the fact the site was in a low risk area for flooding, I consider it was reasonable to ask the LLFA for its view, even though it was not a statutory requirement. This shows the Council was taken appropriate steps to respond to the concerns raised by residents about flooding. The LLFA also requested amendments to the drainage strategy as they did not consider the original plans would sufficiently address the surface water drainage concerns; another indication that the concerns about flooding were considered and addressed.
44. Neither can I identify any fault in the way the Council investigated Mr B’s complaint that the construction of the development, and in particular a change in the site levels, was not in accordance with the planning permission and had increased the risk of flooding to his property. Its officers and the LLFA have visited the site on several occasions, obtained further information from the developer (including photographs and flood maps) showing the site both pre- and post- development, considered the detailed information provided by Mr B and visited his property. On the basis of information from all these sources it concluded that the ground levels had not been raised: after construction the gardens had been returned to the original levels and the developer had agreed to remove a layer of topsoil before carrying out any landscaping. The Council also ensured all the fencing had gaps to allow for water to flow under them and that a footpath was reduced in height.
45. The Council has also answered Mr B’s points of disagreement and explained why it does not agree that the development has increased the flood risk to Mr B’s property. It also explained why the LLFA expressed a different view in respect of the more recent application. I have noted that this more cautious approach has been overturned by the Planning Inspector on the basis that the information supplied with the application was proportionate and sufficient to reach a decision. Although this application was for very minor development, the principle of proportionality still applies, and I consider Council obtained sufficient and appropriate information to determine the applications.

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Final decision

46. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman