Summary: Mrs D complains the Council failed to require assessments as part of the planning application process. I have not found fault by the Council; it acted in line with its policies and procedures.

The complaint

1. The complainant (whom I refer to as Mrs D) says the Council failed to require a Basement Impact Assessment (BIA) as part of the planning application process for a neighbouring development. Mrs D disputes whether the Council correctly discharged a planning condition relating to drainage or made the required checks to mitigate a flood risk.
2. Mrs D says that her garden has been flooded since works to the development started and she is seeking £10,000 from the Council.

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The Ombudsman’s role and powers

3. 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

4. I have exercised discretion to look back to when the planning application was considered by the Council in 2018 because the complainant has pursued her case regularly since the flooding occurred. My investigation covers the period up to the final complaint response issued by the Council in December 2023.
5. We provide remedies for injustice, not compensation, punishment or fines. It is not our role to assess economic losses or award compensation, and we direct people to the courts where that is their primary goal.

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How I considered this complaint

6. I considered evidence provided by Mrs D and the Council as well as relevant law, policy and guidance. Mrs D and the Council 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

What happened

7. In March 2018 the Council received a planning application for the demolition of an existing building and erection of a new property with a basement, sited near Mrs D’s home. In October the application was considered by the Planning Committee. The Planning Committee approved the application and set out conditions relating to drainage including the submission of a sustainable drainage strategy before construction started (condition 11) and prior to occupation of the development to submit a verification report showing how drainage measures had been implemented (condition 12).
8. In November 2019 the Council received an application to discharge condition 11. In December a Sustainable Urban Drainage (SUDS) Officer told the developer the Council did not recommend discharge of condition 11 because it needed more information. In January 2020 the Council refused the application to discharge condition 11. At the start of September the developer provided a SUDS strategy and subsequently that month asked the Council to discharge condition 11. The developer provided additional information to the Council in November and December. On 3 February 2022 the Council noted it was satisfied condition 11 had been met and it was discharged.
9. In January 2023 Mrs D says her garden was flooded which she believed was caused by the development works on the nearby site. In September Mrs D complained to the Council that it had failed to require a BIA, and this had resulted in an incomplete assessment which had caused her property to flood. The Council replied on 26 September. It explained that a BIA had not been required in 2018. Flood mitigation had been considered and formed condition 11 which was discharged after evidence the developer had complied with the condition. Mrs D asked the Council to reconsider her case in November, and the Council sent its final complaint response on 8 December. It reiterated the information needed to discharge condition 11 had been supplied and it could not retrospectively request a BIA for the development.

What should have happened

10. When the Council receives a planning application it requires supporting documents to validate the application. In 2018 the Council’s procedures and policy did not require an applicant submit a BIA or a Flood Risk Assessment for Development. A Flood Risk Assessment was only needed if the development exceeded a specified size or was in a designated flood zone. This changed in May 2023 when the Council introduced the requirement for a BIA for applications which include a basement. This 2023 requirement cannot be applied retrospectively. For smaller scale developments the Council does not require a greenfield (surface) run-off analysis as part of the planning application.
11. Once the Council is satisfied and validates the application it is publicised, comments are sought from relevant parties and considered by a Planning Officer. They submit their findings and recommendations in a report to the Planning Committee who then determines the application. If the Planning Committee approve the application, it can attach conditions to the permission. The applicant must satisfy the Council the conditions are met.
12. Applications are assessed against the relevant planning policies; in the case of runoff rates the Council takes account of DMD Policy 61. This states that ‘all other developments (aside from majors) should seek to achieve greenfield runoff and must maximise the use of SUDS, including at least one ‘at source’ SUDS measure resulting in a net improvement in water quantity or quality discharging to sewer in-line with any SUDS guidance or requirements’. The Council says the wording of DMD Policy 61, was intended for brownfield sites. When looking at a minor development the Council takes a flexible approach as it is not always possible to precisely calculate greenfield runoff rates or achieve them.

Was there fault by the Council

13. I understand Mrs D feels the Council should have required a BIA or a Flood Risk Assessment. The Council has already correctly advised Mrs D that a BIA was only a requirement from 2023. It cannot be retrospectively applied to a 2018 application. In respect of the Flood Risk Assessment the criteria are not met, because of the scale and location of the development, to require this type of assessment. There is no fault by the Council.
14. Mrs D says the Council should have looked further at how to mitigate any flooding outside the curtilage of the development. The evidence shows me the Council examined and evaluated documentation from the developer until it was satisfied it could discharge condition 11. The Council says the proposed discharge rates were acceptable, and the developers had sought to achieve as close as greenfield runoff rates as possible and had maximised the use of SUDS (including more than one ‘at source’ SUDS measure). Whilst I appreciate that Mrs D does not agree with the Council’s position, I do not see evidence of fault in how the planning application and discharge of condition 11 was considered. The Council adhered to the correct process. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong: that applies in this case.

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Decision

15. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman