The Ombudsman's final decision
Summary: There was no fault by the Council when it decided not to take enforcement action for breaches of planning conditions. However, the Council failed to keep Mr B informed of its investigation and decisions, and took too long to respond to his complaints. The Council has agreed to apologise to Mr B for the shortcomings in its communications.
The complaint
Mr B complains that the Council failed to: ensure that the developer retained a surface water drainage system when it built new houses on land adjacent to his home, or take enforcement action when he reported breaches of planning conditions; keep residents who had complained to it informed of its actions; and deal with his complaint to it in accordance with its policy.
Mr B says that as a result of the Council’s failings, he and his neighbours suffered flooding, and the added distress and frustration when the Council did not deal with their reports properly.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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)
How I considered this complaint
I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments into account before issuing my final decision.
What I found
The law and guidance Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59) Councils have a range of options for formal planning enforcement action available to them, including: Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
The Lead Local Flood Authority (LLFA) leads the management of local flood risks. The LLFA has a duty to provide technical advice on surface water drainage to local planning authorities on major developments. The LLFA is the county council or unitary authority. Mr B’s complaint is against the District Council as this is the planning authority. The LLFA gives technical advice. The District Council retains responsibility for the planning decisions.
What happened Mr B lives in a residential area. The Council refused outline planning permission for a housing development on land adjacent to his home. In 2019, the planning inspector granted permission on appeal, subject to conditions. In 2021, the Council granted reserved matters planning permission for the housing development, again subject to conditions. Relevant to this complaint, the outline and reserved matters permission say: No development shall take place until a detailed plan of surface water drainage for the site has been submitted and approved by the Council. The plan will be in accordance with the principles outlined in the Drainage Strategy (and any later amendments).
Prior to the commencement of the development, the applicant shall submit to the Council for approval, the details of how surface water run-off will be avoided during construction.
Prior to the first occupation of the development, a verification report carried out by a qualified drainage engineer must be submitted to and approved by the Council. This must demonstrate that the drainage system has been constructed as per the agreed scheme. (This condition relates to drainage and not surface water run-off).
In November 2022, Mr B complained to the Council that the developer had filled in a drainage ditch that had run along the boundary between his garden and the development. The ditch used to drain into the nearby road water drainage system, but now surface water would be redirected into the garden of Mr B’s neighbour. Mr B pointed out that the drainage strategy submitted with the planning application had said that the existing ditch should be retained. Other residents also complained.
The Council acknowledged Mr B’s report and said it would investigate this and then update him. A few days later, the Council visited the site. It raised that the drainage plan showed a boundary ditch. However, the manager on site said that there had been no ditch and he did not think the excess surface water was coming from the site.
In December, the Council met with the developer. The developer gave the Council a topographical survey of the site which said the water would not run off to the residents’ gardens as these were higher than the site. The developer said it was open to investigating any reports of water run off as they happen, but that any ditch would not be permanent and would only be used in the construction phase.
The Council considered this information and noted that the levels between residents’ gardens and the new development are expected to be similar, and some properties will be lower than the site.
In January 2023, Mr B told the Council that the water was now coming into the garden and he sent photographs showing the old ground levels and the approximate line of the drainage ditch. The Council met again with the developer, who again disputed that there had been a ditch.
To be clear, the drainage ditch was not shown on the approved plans of the outline or reserved matters planning consents. The Council took advice as to whether it could take enforcement action to require the developer to reinstate a ditch if there was no evidence it had been there. The Council decided that it could not.
However, the developer was breaching the pre-commencement conditions because it had started construction work before it had submitted the drainage plan. The Council told the developer it must submit the plan, and this would allow it to address how surface water drainage would be managed with or without the drainage ditch along the boundary.
At the end of January, Mr B chased the Council for an outcome of its investigation. The Council told him that it was still working on this.
The developer submitted a drainage plan and in March 2023, the Council refused to discharge the planning condition. It told the developer that it needed to submit a proposal for a ditch along the northern boundary with periodic check dams to slow the flow of water and to catch residual flows which reach this boundary. The Council said that the new houses would soon be occupied and the developer should start work on the drainage before these plots were sold off and while it still had access to the land.
That month, Mr B contacted the Council again. He told it that his garden had flooded and the ground is sodden. He has lived at the property for decades and this had never happened before. His neighbour had water running through his garden. The Council told Mr B that it was still investigating the issues.
The LLFA approved in principle the developer’s proposal to build a bund along the boundary but it needed more details to formally approve this. The developer submitted further information but the LLFA told it that it needed clarifying.
In April, Mr B complained to the Council as he had not heard anything more. The Council chased the developer. Neighbouring residents had also complained and were chasing the Council for updates. The developer had submitted further information to the LLFA.
In May, the Council responded to Mr B’s complaint. It told him that it was waiting for the LLFA to approve details of a bund that would resolve the drainage issues. Later that month the LLFA approved the details of the drainage plan, including a bund along the boundary, and so the Council discharged the planning condition. Once the drainage system had been installed, the developer would need to submit the verification report to show that it was built in accordance with the approved plan. The planning condition said the developer should submit the verification report before the new houses were occupied.
On 25 May, Mr B asked the Council to consider his complaint at stage two of its complaints process. He said the Council has not addressed his concerns. The bunded drain would only be able to channel the water along the original route but the source of the water is coming from further up the boundary. This is not addressed by the new plan. Mr B also said the Council should have acted sooner.
The new houses were now occupied but the developer had not submitted the required verification report. The LLFA needed to approve the report and the Council asked it for an update on this.
The Council responded to Mr B’s complaint in October. It confirmed that the LLFA had accepted the details of the drainage system and so the Council had discharged that condition. It was waiting for the LLFA to approve the verification report.
Overall, the Council’s position is that: although the developer breached the pre-commencement and pre-occupation conditions, it cooperated with the Council to resolve the issues. This meant that it was more productive to work towards a solution than to take enforcement action.
following its investigation, the Council could not find evidence that there had been a drainage ditch, but the planning conditions did not specifically require there to be one. It was not shown on the approved plans.
as the boundary is on the gardens of Mr B’s house and the new houses, it would not usually require a specific condition for drainage of that boundary itself. The development has met the standard requirement for drainage of surface water, and the Council has followed the recommendations of the expert consultees such as the LLFA. However, those consultees delayed in giving the required technical advice, and this meant the Council took longer than it had anticipated to discharge the planning conditions.
the Council has partially discharged the condition that requires a verification report. It accepted a verification report for part of the development alongside Mr B’s property. When the development is complete, the developer will submit a further verification report for this part of the site.
residents’ gardens flooded because of unusually high rainfall. The developer had most likely altered the ground levels. This has been resolved by the drainage system and the bund approved by the LLFA. The Council added that a major storm in October 2023 resulted in flooding of 400 homes in the area, but the Council did not receive complaints of flooding from Mr B or his neighbours.
Mr B says that drainage is still a problem at the site and has sent me photographs of his garden and the strip between his garden and the new development, where the ground is waterlogged.
Mr B has also said that the developer had not constructed a bund. The Council visited the site with the developer. It could not check exactly what drainage had been installed without digging the system up. It inspected the strip of land between the development and Mr B’s garden, but could not tell whether the developer had constructed the bund. The Council opened and inspected a chamber which showed signs of water. The developer says that the surface water drainage runs along the line of the old ditch, and the side of this forms part of the bund.
The Council noted that the developer contradicted their previous comments about there being no ditch. It asked the LLFA for its expert advice. The LLFA said that to verify the drainage system, it would need to dig it up, but it notes there was signs of water in the inspection chamber which suggests that it is collecting some water. The Council said that this is not proportionate and would disturb mature planting and residents along the boundary.
Both the Council and the LLFA say they have had on reports of flooding despite significant rainfall. Mr B says his garden is often waterlogged. The Council has decided that on the balance of probabilities, the developer has installed the drainage system that it approved on the basis of the LLFA’s advice. This means there is no evidence of a breach of planning control and the Council cannot take enforcement action.
Analysis Mr B’s starting position is that drainage had not been a problem prior to the development and a drainage ditch along the boundary ran surface water into the nearby road drainage system. The ditch was shown on the plan of the drainage strategy submitted with the planning application. The developer said there was no ditch along that part of the boundary, and the Council has not been able to establish that there was, although the developer now says the new drainage system follows the line of this.
I have no reason to doubt Mr B and as he has lived there for many years, it seems likely that there was a drainage ditch there. However, as it is not on the approved plan or part of a planning condition, the Council cannot require the developer to keep, or reinstate it, and it cannot take enforcement action when the developer failed to do so.
The Council investigated Mr B’s reports of breached planning conditions in good time. It found the developer had breached conditions because it had started work before the drainage system had been approved; and it allowed the new houses to be occupied before it had submitted the verification report.
Having established these breaches, it is for the Council to decide whether it is in the public interest to take enforcement action. Here, as the developer was cooperating to resolve the breaches, and the Council could foresee that this was possible, the Council has properly considered enforcement action and it was not fault for it to decide not to take this approach. The Council kept this under review and it did warn the developer that it could take enforcement action when other unrelated breaches were not being resolved satisfactorily.
The Council later approved the drainage arrangements (on the advice of the LLFA), and discharged the planning condition. Mr B says the drainage system is not working, the water run-off has been re-routed by the new development, and the garden is still waterlogged after wet weather. However, it is not fault for the Council to follow the advice of the expert consultees. It took this into account, as well as its own investigations and it properly considered the details of the drainage system. As such, there is no basis for me to question the merits of the Council’s decision to discharge the planning condition.
Mr B has told me that the developer has not built the bund and questions how the Council can say the drainage arrangements is in operation, and is working. The Council has revisited the site. It says the drainage is below ground and beyond boundary treatments and so it cannot tell whether it has been properly installed. It has checked this with the developer and LLFA. Having taken all the information it has into consideration, the Council cannot show that the developer has breached the planning condition. As such it cannot take any enforcement action.
I appreciate that Mr B does not agree that the drainage system is working. However, it is not the Ombudsman’s role to decide on this. Our role is to make sure the Council has properly considered the relevant factors, which it has. 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.
The Council did respond to Mr B’s contact and it has shown that it dealt with contact from other residents. However, it did not do enough to keep Mr B informed of what was happening and did not update him. I appreciate that the Council was often waiting for information from another party, but it could have done more to keep Mr B updated. Instead, it waited for him to contact it. This shortcoming was compounded when the Council took far too long to respond to Mr B’s complaint at stage two of its process. This caused Mr B frustration and put him to unnecessary time and trouble chasing the Council.
Agreed action
The Council will within one month of this decision apologise to Mr B for failing to keep him informed of its actions and for taking too long to respond to his complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. There was fault by the Council causing Mr B injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman