Summary: Mr X complained the Council ignored his concerns about flood risk when it granted planning permission for a development. Mr X said the new development would cause flooding on his land. The Council was not at fault in the way it made its planning decision. Mr X has already appealed to a Tribunal which is better placed to consider a private drainage dispute. The Council was at fault for a record keeping delay, but the Council has already remedied this issue.

The complaint

1. Mr X complained that:
• the Council ignored his concerns about flood risk to his land when it granted planning permission for development on neighbouring land;
• the planning officer report had inaccuracies because a drainage document was withheld from the public;
• drainage officer comments were not on the planning portal prior to the decision being made; and
• there had been changes in the location plans and relevant bodies had not been consulted.
2. Mr X said he had commissioned independent reports at a significant cost which confirmed his flood risk concerns were justified. This caused him distress and financial costs.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If we are satisfied with an organisation’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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. It is our decision whether to start, and when to end an investigation into a complaint or any part of a complaint the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I read Mr X’s complaint and supporting documents and spoke to him on the telephone.
7. I spoke to the Council and considered its comments about the complaint, the supporting documents it provided and the case officers report.
8. I considered the Council’s policies, and relevant law and guidance as set out below.
9. Mr X and the Council had an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Relevant law and guidance

Planning law

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. 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.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
15. The Town and Country Planning (Development Management Procedure) (England) Order 2015 sets out the Council’s consultation requirements for certain types of development.

Land drainage and planning

16. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision.
17. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. 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. Remedies for these matters are available in the civil courts and tribunals.

Agricultural Land and Drainage First-Tier Tribunal

18. This tribunal considers applications under sections 28 and 30 of the Land Drainage Act 1991, about certain drainage disputes between neighbours.

Background

19. Several years ago, the Council approved outline planning permission for a development on a site next to Mr X’s land and property. A condition in the outline planning permission required foul and surface water drainage of the site to be submitted to the Council at the reserved matters stage.
20. More recently, the Council approved a reserved matters application for the development site but the development has not yet started.
21. Throughout the planning application consultation process Mr X raised concerns with the Council about the risk of flooding to his land from the development site. Mr X said the applicant had not produced a robust assessment of flood risk and further information was needed to consider drainage on his land.
22. Several years ago, Mr X appealed to the First level Agricultural Land and Drainage Tribunal. The Tribunal made nine recommendations and Mr X said the investigation is still ongoing and new information was being considered.
23. Before a decision was made on the planning application, the Council’s planning case officer wrote a report which included:
• a description of the proposal and site;
• issues relating to drainage and flood risk management issues and comments from the drainage and flood risk manager;
• issues relating to ecology and comments from the Council’s ecologist;
• issues relating to highways;
• objections from four individuals that existing drains and sewerage systems were at capacity and increase of flooding on neighbouring land was more likely;
• consideration of an Agricultural Land and Drainage Tribunal independent report;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including drainage, highways and ecology; and
• the officer's recommendation to approve the application, subject to planning conditions relating to drainage, ecology, contaminated land and highways.
24. Mr X complained to the Council that the content of the officer report was inaccurate. He said the Council had not published a drainage plan on its website for public consultation and drainage officer comments were not published before the planning application decision was made. Mr X then complained to us.
25. The Council responded to Mr X three months later and apologised for its delayed response. It said the drainage plan had been published but it was not clear if it had been made public, however another publicly available document showed the same drainage information. The Council told Mr X the planning officer comments were correct and it had all the relevant information to make a decision.
26. When he complained to us, Mr X also complained that:
• different plans for ecology matters and flood risk showed different areas of land;
• he had concerns relating to a Natural England investigation;
• he had concerns relating to drainage matters;
• the Council was wrong to accept highway access visibility splays (drawings); and
• he was concerned that the Environment Agency and water company had not been consulted on the planning applications.

Enquiries

27. In response to my enquiries the Council said:
• the development had not yet started;
• there were no changes to the site ownership or application site boundaries between the outline and reserved matters applications;
• the drainage management plan was not made public at the time of the reserved matters decision due to human error but was uploaded onto its website after the reserved matters decision. It also said another plan showed the same drainage information and this had been available to the public on its website;
• drainage issues were assessed in the case officer report which included consideration of all comments made by the Councils’ drainage manager. It was not obliged to provide additional time for members of the public to comment on consultee comments;
• it had considered surface and foul water drainage arrangements and found both acceptable. The water company confirmed there was sufficient capacity in the foul drainage network to serve the site at the outline application stage. The Council confirmed a surface water drainage checklist was not submitted with the application because details were provided in detailed drainage design and drainage modelling data. The development would be carried out in accordance with the drainage plans set out in the reserved matters conditions;
• it had acted in accordance with the regulations. So, the Environment Agency were not consulted because the site was not in a flood zone requiring consultation. Also, the water company was not consulted because the development did not involve boring, or obtaining oil or natural gas; and
• the Environment Agency foul drainage assessment was only necessary for non-mains sewers, but as this development would connect to a mains sewer, no assessment was needed for the application.
28. In response to my draft decision Mr X made the following points:
• a judicial review was delayed because the planning officer report referred to green field discharge and Mr X said the greenfield discharge rate was incorrect when a withheld drawing was obtained in January 2023 after the planning decision was made. Mr X said, because of this, the case could not be judicially reviewed;
• a surface water drainage checklist was not submitted with the application and it should have been. Mr X also said the contents of the checklist were not included in the drainage design and modelling data;
• the highways visibility condition is not enforceable and a ‘Grampian’ (negative) condition should not have been used because this will lead to the loss of a hedge and tree line on his land;
• the planning application submitted was on a set of ownership boundaries that contained specific liabilities, the planning application was assessed on a different ownership plan that removed the liabilities; and
• the Council should have consulted the Environment Agency and Water company on the planning application before making its decision.

My findings

Drainage and flood risk in the planning process

29. We are not a planning appeal body and so cannot evaluate the planning considerations and offer a view on what planning decision should have been made. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
30. Before a planning decision was made, the Council took account of:
• the application plans and associated documents and drawings;
• comments from the public and other consultees;
• relevant policy; and
• the case officer’s report and recommendation.
31. This is the decision-making process we expect and so I find no fault.
32. The Council did not consult the Environment Agency or the water company on the outline or reserved matter planning applications. I have checked the regulations and found no fault in the way the Council applied them.
33. The Council did not invite the public to comment on drainage officer comments before the decision was made. I checked government guidance on consultation but found no obligation for the Council to do this.
34. The location plans for the outline and reserved matters application included the same site and ownership boundaries. The Council considered other plans too relating to ecology matters and flood risk issues. I found no fault, but if there are problems for Mr X caused by land drainage issues, Mr X can raise them with the Tribunal. The Tribunal is better placed to consider and resolve drainage matters.
35. The Council considered highway visibility in its case officer report and included a condition in its decision notice. The condition required work to be done to ensure adequate visibility splays before construction begins. Whether to impose this condition was a matter for the Council to decide, and in the absence of fault, we cannot comment on its judgement. I found no evidence of fault in the way highways matters were considered.
36. Whether it is possible to comply with the condition’s requirements because of the private rights of landowners, remains to be seen. If it is not possible to comply with the condition and make the access safe, it may not be possible to carry out the development. If this is the case, this will be a matter for the planning authority to decide.
37. Mr X was concerned about an investigation by Natural England. We should not comment on this issue, because it is not a body within our jurisdiction.

Fault in record keeping

38. The Council accepts a drainage strategy plan was not available on its website because of an administrative error. This is fault. When we find fault, we have to decide whether there is any injustice for which we should recommend a remedy.
39. The same drainage information was available in a different document and the drainage strategy plan was eventually put on the Council’s website in January 2023 and the Council apologised for the error. I am satisfied that no injustice was caused and no further action is necessary.

Private drainage dispute

40. Mr X is involved in a private legal action against his neighbour. Remedies for drainage and flooding matters are available in the civil courts and Mr X has already used his right of appeal to the Agricultural Land and Drainage Tribunal for the flood risk issue.
41. This is the appropriate body to decide and resolve this dispute and we should not investigate further.

Other Matters

42. In response to the comments Mr X made on an earlier draft of this decision:
• Mr X says his judicial review rights were affected by the Council’s failure to upload a drainage document to its website. Access to judicial review and the limits of time bars are matters for the courts to decide;
• if the green field discharge data is, as Mr X suggests, incorrect, this does not mean the Council becomes liable for the actions of private individual landowners. Liability for damage caused by drainage arrangements is for the Tribunal to decide;
• the Council’s surface water drainage checklist says the checklist 'should’ be used for major planning applications. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations. In any event, the appropriate forum for deciding liabilities for drainage arrangements is the Tribunal;
• we cannot speculate whether the highways visibility condition is unenforceable, but have found no evidence to suggest fault in the way these issues were considered; and
• as I have set out above the regulations do not show the Council needed to consult the Environment Agency or the water company before deciding this application.

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Final decision

43. I have completed my investigation finding no fault in the way the Council made its planning decision. The Council was at fault for a record keeping delay but it did not cause an injustice. Mr X has appealed to a Tribunal which is better placed to consider the private drainage dispute.

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Investigator's decision on behalf of the Ombudsman