The Ombudsman's final decision
Summary: Mrs B complains the Council has not taken enforcement action against a neighbouring development. Mrs B says the Council did not properly consider her complaints about flood risk and occupation of the site before the completion of a drainage system. The Ombudsman finds fault in how the Council completed its enforcement investigation.
The complaint
The complainant, who I refer to as Mrs B, complains the Council has not taken enforcement action against a neighbouring development. Mrs B says the Council accepted that a surface water drainage plan discharged the conditions of its planning approval when it did not provide for soakaways, as required by the conditions. She says the Council did not verify that all the components of the drainage scheme existed, such as a withy bed for the surface water to drain into. Mrs B says there is no withy bed, and the water drains through a pipe, which empties at the bottom of her garden. She is concerned about the increased risk of flooding to her garden.
Mrs B says the Council also did not enforce against the owner for occupying the site while work was still ongoing, in breach of the conditions. Mrs B is concerned that during this time there was no foul water system, so foul water from the mobile home and barn would have drained, along with the additional surface water, into her garden.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) If we are satisfied with a council’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 Mrs B provided and spoke to her about her complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.
What I found
Law and Guidance Planning permission may be granted subject to conditions relating to the development and use of land.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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 July 2021, paragraph 59)
Background
In 2018 the Council approved planning permission for a development neighbouring Mrs B's home. Mrs B made objections to the application and raised concerns about the risk of flooding to her property from the increase in surface water. The Council decided it did not consider the proposal would increase the risk of flooding to a significantly detrimental extent.
The approval included the following conditions No development shall commence until a scheme for the disposal of all foul and surface water drainage is submitted and approved by the Council. Thereafter, no part of the development shall be occupied or brought into use until the approved scheme has been fully implemented.
Mrs B raised concerns that the structure being built was not a mobile home. Also, that construction had started before the drainage scheme was submitted and conditions discharged. The Council says it opened an enforcement investigation in May 2019.
The Council has provided a retrospective note from August 2020 that sets out how it investigated in 2019. It has not provided any primary documents from its investigation in 2019. The Council’s note says it completed two site inspections in June 2019. It found the mobile home was not being constructed in line with the approved plans. It therefore sent a letter to the developer to say there was a breach of planning control. The developer submitted a fresh application.
The note also says there was no evidence of occupation at the site in June 2019. Mrs B has provided an email in May 2019 in which she says conditions were not being complied with. She has provided another email from her partner in August 2019, which says the site is permanently occupied.
In mid-2019 the developer sent a drainage plan to the Council. The plan said the developer would install a septic tank, connected to a drainage field and soakaway, to deal with foul water from the mobile home. For surface water, the mobile home would pipe to an existing drainage, terminating in a withy bed. It said each other unit would have a composting toilet and small soakaway served by a settling tank. The Council found this was acceptable and partially discharged the condition. Full discharge would be achieved when the scheme was completed. The developer also applied for a new application with changes to the design of the mobile home.
Mrs B says that in July 2019 she informed the Council in a telephone call that the owner was living on site. She has provided an email dated August 2019 from her partner to the Council in which he says the owner is living on site. In December 2019 Mrs B raised concerns again with the Council that the developer was living on site but had not implemented the foul water drainage system. Mrs B said there had been flooding, the water flowed into her garden, and she was concerned about contamination from the composting toilets and also a pig enclosure.
The Council acknowledged Mrs B’s letter in early January 2020. Mrs B chased the Council in late January 2020 and in early February 2020 it conducted a site visit. The officer’s notes from the inspection said there was no evidence of contamination to the water course. The developer was ready to put in a septic tank for the mobile home. The Council informed the developer it was fine to go ahead with installation of the septic tank while the amended planning application was ongoing. The officer did not make any comment on occupation, but it is clear from later emails the Council were aware the developer was occupying the site at this time.
In May 2020 the Council approved planning permission for the changed mobile home design. The permission included the following condition: The disposal of foul drainage shall be to a septic tank and drainage field, and surface water connections shall be to existing drainage and soakaway as approved under the discharge of conditions. No part of the development shall be occupied or brought into use until the approved scheme has been fully implemented for that part of the development.
Mrs B continued to raise concerns and in June 2020 the Council completed a further site visit. The Council found the septic tank had been installed.
In July 2020 Mrs B made a formal complaint to the Council. She said the Council had discharged the drainage condition without the developer meeting the condition. She said the Council should have taken enforcement action about occupation before completion of the drainage scheme.
The Council’s response to the complaint is dated March 2021. It did not uphold the complaint. The Council said officers were satisfied the drainage plan was acceptable and partially discharged the condition. It would be fully discharged on completion of the drainage works. The Council said there was no enforcement action to take against occupation after the developer fitted the septic tank.
Mrs B was not satisfied with the response. She asked the council to confirm the existence of a withy bed and drainage field, as outlined in the drainage scheme. She also asked it to confirm calculations for the peak transfer of water and evidence of the construction of soakaways.
The Council’s response said it would not normally require peak flow calculations for a non-major development. It provided a copy of the email sent by the applicant for discharge of the conditions, which outlined the drainage scheme.
Findings
Mrs B complains about the following issues: The Council discharged the condition on drainage when it was not in line with the conditions of planning approval and without checking the components of the drainage scheme existed The Council did not take enforcement action against occupation before completion of the drainage system The Council has not ensured a drainage scheme has been put in place Discharge of condition I do not find fault in how the Council considered the discharge of condition application. The condition in the original planning permission did not say anything about soakaways being required. It only said the owner must submit a drainage scheme. The owner did submit a scheme, and this included soakaways. The Council was satisfied the scheme was acceptable and I cannot question the merits of that decision.
However, this only partially discharged the condition. Full discharge would be achieved on completion of the scheme.
Mrs B has raised specific concerns questioning whether the drainage scheme has been completed in line with what the Council approved. She says there is no withy bed and instead the surface water runs off into a ditch, that then goes through a pipe, which ends in her garden. She also suggests the developer has not constructed the soakaways and questions whether the septic tank is connected to a drainage field.
I cannot see any indication in the documents provided that the Council investigated these concerns or checked that the installed drainage system complied with the approved plan. It checked the septic tank was installed but this is only one aspect of the drainage system. Its complaint responses do not address any of the other issues Mrs B raised. It simply sent Mrs B a copy of the drainage plan, which she had already seen, and did not comment on the concerns she raised.
I note the Council has not approved any further discharge of conditions that would confirm the conditions were fully complied with.
For the reasons outlined above, I find fault in how the Council completed its enforcement investigation and responded to Mrs B’s complaint. I recommend it investigate whether the drainage system has been completed in line with the plan that partially discharged the condition and provide details of its findings to Mrs B.
Occupation Following the partial discharge, the council approved the varied application with an updated condition. This condition prevented occupation until the drainage scheme was completed for that part of the development.
Mrs B’s concerns about occupation were in relation to the mobile home. Therefore, before anyone occupied the mobile home, the septic tank should have been installed, connected to the drainage field and a pipe installed to carry surface water to the withy bed. I can see the Council checked there was a septic tank. However, I cannot see it checked whether there was a pipe to a withy bed. Therefore, it is not clear the Council properly considered whether the drainage system for the mobile home was complete.
I understand Mrs B says the owner was in occupation from July 2019. Mrs B has provided evidence she and her partner made the Council aware of this in at least August 2019. This email does not specifically raise concerns about the drainage system not being in place before occupation, but the Council would have been aware of this requirement. Mrs B raised this again in December 2019. It does not appear the Council visited the site or considered whether there the occupation was a breach early February 2020. I therefore find, on balance, that there were delays in the Council investigating the issue of occupation.
In February 2020 the Council found the owner was in breach of the condition but was ready to install the septic tank so did not take further action. I do not find fault with this approach. Planning enforcement is discretionary, and it is normal for councils to engage with developers to ensure it meets with conditions before taking formal enforcement action. In this case it did so and was satisfied the owner would install the tank. It then followed up following Mrs B’s further complaint in June 2020 and confirmed the tank was in place. However, as above, there is no evidence the Council checked whether the other parts of the drainage system were complete. This is fault.
I cannot find the continued occupation of the mobile home caused a significant direct injustice to Mrs B. The Council did not find any evidence of contamination to the water passing through the ditch and into Mrs B’s garden. Mrs B says she has found an increase in the amount of water passing into her garden. She says this has resulted in erosion and destabilisation of the ground. She is concerned the greensand in her garden may wash away and lead to potentially serious damage to her property.
However, if the Council finds the developer has not completed the part of the drainage scheme for the mobile home (i.e. the surface water pipe to a withy bed) in line with the approved plan, it should then consider whether the ongoing occupation remains in breach of the condition and, if so, whether it is expedient to take enforcement action.
Agreed action
The Council has agreed to, within a month of this decision: Apologise to Mrs B for the fault in its planning enforcement investigation and complaint response Investigate whether the drainage scheme has been completed in line with the drainage plan that partially discharged the condition of planning consent, and therefore fully discharged the condition If the Council finds the drainage for the mobile home is not completed in line with the plan, consider whether the occupation is a breach of conditions and whether it is expedient to take enforcement action Write to Mrs B to confirm the details and findings of its investigation
Final decision
The Council is at fault in how it completed its enforcement investigation and responded to Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman