Summary: Mr B complained about the Council’s handling of a planning application for flood prevention works at a nearby park. We find that the Council failed to properly consider what would happen to excavated soil when making or determining the application, which led to the Council wrongly treating it as minor development. The Council also included incorrect information in the officer’s report on the proposal and delayed responding to Mr B’s complaints. These failings have led to unauthorised works, disruption to park users and avoidable frustration and uncertainty for Mr B regarding the fairness and impartiality of the decision-making process. The Council has agreed to apologise to Mr B and make service improvements.

The complaint

1. Mr B complains that there were failings in the way the Council granted planning permission to construct two attenuation basins and swales at a nearby park. Mr B also complains that the works which have been carried out do not accord with the approved plans.
2. Mr B says that the Council’s actions have reduced the amount of useable public open space and changed the character and appearance of the park.

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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. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
5. When we investigate a complaint about a planning decision, we consider whether there has been any administrative fault in the way the application has been decided which may call into question the decision. We do not consider the application afresh on its merits; we look only at the process followed by the council when it reached the decision.
6. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
7. We will not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

8. 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)

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What I have and have not investigated

9. I have investigated the Council’s handling of the planning application approved in September 2023. I have not investigated Mr B’s complaint about earlier “phase one” works due to the restrictions outlined in paragraph four of this statement. I consider it would have been reasonable for Mr B to complain about this earlier.
10. I have not investigated the subsequent application approved in May 2025, as this was determined after my investigation began.
11. I have not investigated every issue raised by Mr B for the reasons explained in paragraphs six and seven. In particular, I have not investigated matters which do not appear to have caused Mr B any significant injustice, or to have affected the decision to grant planning permission. These include Mr B’s complaints about the lack of a construction management plan, the proximity of the development to a play area, the ownership of the park and the use of the Regulation 3 procedure.

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How I considered this complaint

12. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
13. Mr B and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Planning applications

Planning permission

14. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.

The National Planning Policy Framework (NPPF)

15. The NPPF does not change the statutory status of local development plans as the starting point for decision making. It constitutes guidance in drawing up plans, and is a material consideration in deciding applications.

Green belt

16. Some areas of land are designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
17. Government guidance says that inappropriate development in green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.

Conservation areas

18. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.

Publicity

19. Regulations set out the minimum requirements for how councils publicise planning applications.
20. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
21. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.

Case officer reports

22. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
23. However, the courts have made it clear that case officer reports:
• Do not need to include every possible planning consideration, but just the principal controversial issues.
• Do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed on the issues.
• Should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Major development

24. The Town and Country Planning (Development Management Procedure) (England) Order 2015 states that development carried out on a site having an area of 1 hectare or more is major development.

Red line boundary

25. A red line boundary is a clear red line drawn on a location plan to identify the application site. It should include all land necessary to carry out the proposed development (eg land required for access to the site from a public highway, visibility splays, landscaping, car parking and open areas around buildings).

Decision making process

26. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation. Councils must maintain transparency and impartiality, especially in cases involving their own development proposals.

Overview

27. In September 2023, the Council approved its own planning application for the construction of two attenuation basins and swales to provide improved protection against flooding in a local park. Mr B complained that the decision was not made properly and the works did not accord with the approved plans.
28. In the Council’s responses to Mr B’s complaints, it maintained that it had followed the correct procedures. However, it acknowledged that the works were not carried out in accordance with the approved plans. Another application to regularise the unauthorised works was approved in May 2025.

My findings

Soil redistribution

29. Mr B says the Council failed to consider the implications of redistributing soil excavated from the attenuation basins, which resulted in raised ground levels in the park.
30. The planning application did not include sufficient information about what would happen to the soil excavated from the attenuation basins. The only reference was within the Design and Access Statement which stated that the soil would stay on the site, be redistributed across the park, and that levels would be reviewed. It also referred to the creation of small play mounds in some areas.
31. The officer’s report did not reference the planned redistribution of soil, which had clear potential implications for ground levels, appearance, and use of the park. I am not satisfied that the Council properly considered what would happen to the excavated soil when determining the application. This was fault.
32. After planning permission was granted, the soil was deposited across the park and ground levels substantially increased. Some of the soil was deposited outside the red line boundary and therefore did not have planning permission.
33. The Council says that the soil deposited outside the red line boundary was not part of the planning application, and that these unauthorised works were appropriately regularised in 2025. It maintains that there was no procedural fault in its decision to grant planning permission in 2023.
34. While the 2023 application did not include the deposition of soil outside the red line boundary, it did include the redistribution of soil within the development site. This was referenced in the Design and Access Statement and was a necessary and foreseeable consequence of the works. I find the Council failed to properly assess the implications of excavation and soil redistribution when making its decision, which is at odds with the Council’s position that there was no procedural fault.

Major development

35. Mr B believes the scheme should have been classified as major development, and that its classification as minor development may have affected the way it was determined.
36. Where development is carried out on a site with an area of 1 hectare (ha) or more, it is classified as major development.
37. The Council considered the application was not major development because, while the site area was 5ha, the proposed attenuation basins and swales only occupied 0.22ha. However, in reaching this view, it failed to recognise that the development included the soil deposition and covered the entire area bounded by the red line, which was around 5ha. This was fault. The scheme should have been classified as major development.

Public consultation

38. As a result of the Council’s failure to properly consider the redistribution of the soil, and to treat the application as a major development, it was not advertised correctly. This was fault. The application should have been advertised more widely, in accordance with the requirements for major developments, and the description should have included the soil redistribution and raising of ground levels.

Scheme of delegation

39. The officer’s report incorrectly stated that the Chair of the Planning Committee had been consulted on the application. The Council did not consult the Chair on whether the application should be determined by Committee, or by officers under delegated powers. While the Council’s Scheme of Delegation does not require it to consult the Chair on applications for major development, contentious or complex planning applications are more appropriately determined by Committee. On the balance of probabilities, I consider that, had the application been correctly classified and advertised as major development, the Chair would have been consulted.

Environmental Impact Assessment

40. Mr B considers the application should have been screened under the 2017 EIA Regulations. Screening is required for flood relief works exceeding one hectare. The proposed flood relief basins and swales covered 0.22ha and so the Council decided the threshold for screening had not been met. The Council does not consider the soil redistribution to be flood relief works and therefore should not be included when calculating the area. This is a view it was entitled to reach.

Proposed conservation area

41. Mr B says the Council failed to consider the park’s potential designation as a Conservation Area. The officer’s report includes no reference to the park being within a proposed conservation area. The park’s potential designation was a material planning consideration that should have been taken into account when determining the application, even though it is likely to have been afforded limited weight.

Metropolitan Open Land (MOL)

42. The park is designated as MOL, which is afforded the same protection as green belt land.
43. The officer’s report referred to NPPF (2021) paragraph 149(b), which addresses exceptions to the inappropriate construction of new buildings in the green belt. As the proposal did not involve the construction of any new buildings, reference to this paragraph was not relevant and created some ambiguity as to whether the Council viewed the works as inappropriate development.
44. Mr B considers the application is contrary to paragraph 99 of the NPPF (2021) which states that existing open space should not be built on unless an assessment shows the land is surplus to requirements, or the loss would be replaced by equivalent or better provision. Mr B argues that the development has led to the loss of open space.
45. The proposal did not include the construction of any new buildings. The Council considers it does not include the loss of any open space, does not reduce any views and preserves the open nature of the park.
46. The officer’s report shows that it was considered that the proposal would “preserve the openness of the MOL and would not result in unreasonable nor disproportionate additions” and “would not cause harm to its character and appearance, to the Heritage assets in the vicinities, nor harm its setting within the MOL.” I am satisfied that the Council properly considered the impact of the flood relief basins and swales on public open space. However, there is no evidence that the Council considered how the soil redistribution may affect the MOL. This was fault.

Flood risk

47. Mr B considers the Council failed to justify the need for flood prevention works and should have required a Flood Risk Assessment.
48. The Design and Access Statement submitted with the application includes assessments carried out by the Lead Local Flood Authority, showing a risk of surface water flooding. The Council has also provided details of the flood study, assessments and modelling which took place before the application was submitted. The Environment Agency and Thames Water approved the project and part funded it.
49. Flood Risk Assessments are required when developments are likely to worsen flooding or displace groundwater. Since the proposed works aimed to reduce flooding, and had the support of the Environment Agency, the Council decided a standalone Flood Risk Assessment was not needed. I have found no evidence of fault in the way this decision was reached.

Referral to the Greater London Authority (GLA)

50. Mr B believes the Council should have referred the application to the GLA. The Council decided not to do so because it did not consider it met the criteria for referral.
51. Applications which are likely to prejudice the use of a playing field of more than 2 hectares of land should be referred to the GLA.
52. The Town and Country Planning (Development Management Procedure) (England) Order 2015 defines a “playing field” as “the whole of a site which encompasses at least one playing pitch”. It defines a “playing pitch” as an area of 0.2 hectares or more, which is used for association football, American football, rugby, cricket, hockey, lacrosse, rounders, baseball, softball, Australian football, Gaelic football, shinty, hurling, polo or cycle polo.
53. The park contains tennis courts, a croquet club, and football pitches which are used for 5-a-side and 7-a-side football, which is not association football. I have found no evidence of fault in the way the Council decided the park does not meet the definition of a “playing field” and therefore did not meet the criteria for referral to the GLA.

Complaints process

54. Mr B says his complaints were not investigated transparently or objectively because they were handled by officers from within the planning team.
55. The Council’s procedures allow senior officers from within the service area to respond to complaints. We would not consider this to be fault. Officers with the necessary expertise are best placed to respond.
56. However, there were some delays in responding to Mr B’s complaints. The Council’s complaints procedure states that it aims to respond within 20 working days, but it took 26 working days to respond to the stage one complaint and 43 working days for the stage two response. These delays were fault and likely caused unnecessary frustration.

Conclusion

57. The Council failed to properly consider what would happen to the soil excavated from the attenuation basins when making or determining the application, which led to the Council wrongly treating the application as minor development.
58. This has been addressed through a revised application to retain the drainage system and redistribute the soil. The application was treated as major development and the Chair of the Planning Committee was consulted. It was approved under delegated powers.
59. On the balance of probabilities, I do not consider it likely that the original planning application would have been refused if there had been no fault by the Council. However, its failings led to unauthorised works, disruption to park users and avoidable frustration and uncertainty for Mr B regarding the fairness and impartiality of the decision-making process.

Council’s position

60. The Council says that planning law and guidance distinguish between development described and bounded by an application, and later or separate works requiring their own consent. It suggests that our findings of fault, such as not treating the application as major development, arise from collapsing that distinction and wrongly viewing the unauthorised works as part of the application. While the Council accepts that the planning application assessment should have addressed the implications of soil distribution or removal, it maintains that there was no fault in the decision-making process.
61. My findings do not concern the separate unauthorised works outside the red line boundary. They relate to the Council’s failure, at the time of the decision, to properly consider what would happen to the excavated soil, which was a necessary and foreseeable consequence of approving the works, and its failure to assess how the redistribution would affect the whole of the application site within the red line boundary. These were failings in the way the application was determined.

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Action

62. The Council has agreed to offer Mr B an apology for the failings identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology. The Council will take this action within four weeks of my final decision.
63. The Council has also agreed to take the following actions within eight weeks of my final decision:
• Review its quality control procedures to ensure officer’s reports are accurate and comprehensive.
• Address the failings identified in this case with relevant officers and take steps to prevent future occurrences.
• Consider increasing transparency in projects which could significantly impact residents, ensuring clear communication and consultation.
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman