The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to approve a planning application for a new road behind the complainant’s home. There is not enough evidence of fault in the way the Council considered the application to justify an investigation. And further investigation is unlikely to lead to a different outcome. Also, the complainant can make a claim on the Council’s insurance and if necessary refer the matter to the court to decide whether the Council has been negligent and should pay compensation.
The complaint
Mr X complains the Council failed to consider and identify surface water issues before approving a planning application for a new road behind his property. He says surface water pools behind his garden wall and floods his rear garden.
Mr X wants the Council to correct the problem and compensate him for the loss of the use of his back garden for a year.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court.
(Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X bought a property on a new development. He exchanged contracts in June. In July the developer put in an application to change the location of a new road, which now runs behind Mr X’s new home.
Information on the Council’s website shows the planning department consulted the flood risk officer. He did not object to the scheme.
Mr X says the Council was negligent as it failed to consider and identify surface water issues resulting from the planning application. However, the Council consulted its flood risk officer and is entitled to rely on their professional opinion.
The developer put in a new planning application to build a field drain to address waterlogging of boundary walls and gardens and a decision on this is pending. Also, the Council says there is an open planning enforcement case regarding drainage on the site. In view of this we do not consider that further investigation will lead to a different outcome.
The Ombudsman cannot determine questions of liability, this is a matter for insurers or the courts. If Mr X believes the Council is liable for flooding to his property it is for him to make a claim on the Council’s insurance. If this is refused, he can ask the courts to decide whether it is liable and whether it should pay Mr X the compensation he is seeking.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the way the Council decided to approve the planning application further investigation is unlikely to lead to a different outcome; and the question of liability for damage to Mr X’s property is a matter for the Council’s insurers and/or the courts.
Investigator's decision on behalf of the Ombudsman