Summary: Mrs C complains about the way the Council approved and monitored an archaeological planning condition and wrongly interpreted a drainage planning condition. Mrs C says it is possible that important archaeology may not have been properly recorded or lost and existing flooding issues will be exacerbated. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains on behalf of a local heritage group about the way the Council approved and monitored the Written Scheme of Archaeological Investigation required by the planning appeal decision on a particular application. In particular, Mrs C says the Council failed to respond in a timely way to reports that excavation work was taking place on the site without the presence of an archaeologist. Mrs C says because of the Council’s fault, it is possible that important archaeology may not have been properly observed and recorded or lost.
2. Mrs C also complains the Council failed to properly interpret a condition required by the same planning appeal decision requiring a drainage scheme before construction work started. Mrs C says because of the Council’s fault, existing flooding issues will be exacerbated.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. Planning permission may be granted subject to conditions relating to the development and use of land. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority.
9. LPAs can take enforcement action if they find planning rules have been breached.
10. Section171A of the above Act defines a breach of planning control as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

11. However, LPAs should not take enforcement action just because there has been a breach of planning control. Government guidance says local planning authorities should act proportionately in responding to suspected breaches of planning control.

Relevant planning history

12. The Council received an application to build 12 houses. The Council refused the application as the site was beyond the settlement boundary defined in its Local Plan and was within an area of transition into open countryside. The Council considered the proposed development would be an intrusive and inappropriate urban intrusion into the countryside and was harmful due to its scale, layout and appearance to the open countryside character and setting.
13. The applicant appealed the Council’s decision to the Planning Inspectorate. The Planning Inspector upheld the appeal and granted permission subject to conditions.
14. The Planning Inspector’s decision sets out that the main issue was the impact of the proposed development on the character and appearance of the area. The decision is detailed on this issue and concluded the proposed development was not harmful in this respect. The decision goes on to consider other matters of archaeology, playing fields and issues raised by residents including drainage, amenity and traffic.
15. The Inspector stated the following in relation to archaeology:

“There is some considerable interest in the appeal site from third parties concerning its potential to be one of significant national archaeological interest. Notwithstanding the Council’s conclusions on this matter, I have reviewed the relevant evidence before me.

I do not doubt the credentials of those representing third parties and specifically how they consider the archaeological significance of the appeal site may have been down played. Nevertheless, the evidence that has been provided to the Council and Historic England has been robustly investigated. It is the opinion of these bodies that whilst there is no compelling evidence on matters of national significance, a proportionate response would be justified. I agree with this approach since there is clearly some evidence of archaeology on the appeal site. Taking a pragmatic view on this matter, a suitably worded condition to require a written scheme of archaeological investigation to be submitted, considered and agreed would be necessary.”

“Given that the site is of archaeological interest, conditions requiring the submission and agreement of a suitably detailed written scheme of archaeological investigation, the implementation of works and reporting of findings would be justified. Given the potential below ground nature of this work, this would have to be done prior to the commencement of development.”

16. The Inspector’s decision included the following two conditions relating to archaeology:

“No development shall commence on until a Written Scheme of Archaeological Investigation has been submitted to and approved in writing by the local planning authority. The scheme shall include an assessment of significance and research questions - and:

i) the programme and methodology of site investigation and recording;

ii) the programme for post investigation assessment;

iii) the provision to be made for analysis of the site investigation and recording;

iv) the provision to be made for publication and dissemination of the analysis and records of the site investigation;

v) the provision to be made for archive deposition of the analysis and records of the site investigation;

vi) the nomination of a competent person or persons/organisation to undertake the works set out within the Written Scheme of Investigation.”

“The archaeological investigation shall be carried out in accordance with the written scheme approved …”

17. The Inspector’s decision stated the following in relation to drainage:

“Whilst the appeal site is in Flood Zone 1, I note that a drainage scheme was discussed in detail with the relevant stakeholders during the determination of the planning application to ensure that the proposed development would not exacerbate any existing flood risk issues from surface water. Particular attention to this matter was paid given not only the requirements of the planning process to ensure the proper functioning of the proposed development but also the concerns of residents…”

“The proposed drainage scheme would be appropriate in terms of its management of surface water runoff. In addition, there is an available connection to the local foul sewer network which has capacity for the required flows. Furthermore, the scheme would follow sustainable drainage principles that would be incorporated into the site’s design and layout. I am therefore satisfied that the effect on existing neighbouring occupiers in terms of flood risk would not be adverse.”

“A drainage scheme was discussed during the consideration of the planning application. I have been provided with a copy. The scheme is preliminary and it is evident some further investigation is necessary to find the appropriate solution in each respect with specific regard to, amongst other things, the use of deep bore holes. A condition requiring the agreement of a detailed scheme as well as one securing its future management would therefore be justified. For practical purposes, this scheme and its management should be agreed prior to the commencement of development.”

18. The Inspector’s decision included the following condition relating to drainage:

“No building hereby permitted shall be occupied until surface water drainage works shall have been implemented in accordance with details that shall first have been submitted to and approved in writing by the local planning authority. Before any details are submitted to the local planning authority an assessment shall be carried out of the potential for disposing of surface water by means of a sustainable drainage system, having regard to Defra's non-statutory technical standards for sustainable drainage systems (or any subsequent version), and the results of the assessment shall have been provided to the local planning authority. Where a sustainable drainage scheme is to be provided, the submitted details shall:

i) provide information about the design storm period and intensity, the method employed to delay and control the surface water discharged from the site and the measures taken to prevent pollution of the receiving groundwater and/or surface waters;

ii) include a timetable for its implementation; and

iii) provide a management and maintenance plan for the lifetime of the development which shall include the arrangements for adoption by any public authority or statutory undertaker and any other arrangements to secure the operation of the scheme throughout its lifetime.”

Key events

Written Scheme of Archaeological Investigation

19. The Council received the Written Scheme of Archaeological Investigation in August 2018. The Council consulted the County Council Archaeologist, Historic England and the Council for British Archaeology (CBA) about the submitted scheme. The CBA sought community led archaeological investigation. The applicant did not consider this was appropriate on a private development site. The Council sought further advice from the County Council Archaeologist who referred to the Chartered Institute for Archaeologist’s Code of Conduct and concluded that imposing community engagement would be unreasonable and disproportionate. The CBA was advised of the County Archaeologist’s response and their further comments were sought. The CBA did not provide any further comments and the Council proceeded to a decision to approve the Written Scheme of Archaeological Investigation by letter in May 2019 which formally discharged the relevant condition of the appeal decision above.
20. I am satisfied the Council properly considered the information provided when discharging the archaeology condition and I have seen no evidence of fault in its decision making process.
21. The Council has explained that it does not proactively monitor all planning conditions as the applicant is legally compelled to comply with the condition(s) as specified and it does not have the resources to monitor all conditions imposed. The Council says it will investigate reports of non-compliance.
22. I should explain that councils have no duty to monitor development. They are dependent upon members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate.
23. Mrs C contacted the Council on 27 September 2019 about works at the site. The Council responded the same day to confirm the site had been visited and noted work had started to clear the site of undergrowth ahead of development starting the following week. The Council confirmed it had reminded the site operative of the need for an archaeologist to be on site before development started. The Council noted the condition relating to drainage was not a pre-commencement condition. The Council confirmed it did not consider there were any planning breaches at this time.
24. Mrs C responded to say earth was being removed. The Council confirmed that the site inspection had found the digger was being used to remove undergrowth only and explained this did not constitute development as it was not a material operation and so was not a breach of planning condition. The Council also noted the Written Scheme of Archaeological Investigation referred to archaeological supervision during excavating areas to construction depth and that no such excavations were yet taking place. The Council confirmed it would visit the site again the following week to monitor any activity.
25. The Council has provided its records for site visits. The notes for the site visit on 27 September say the site was being cleared ready for works to be caried out on Monday when an archaeologist would be on site. The note for 30 September says there was no archaeologist on site but no works were being carried out. The Council visited the site on 31 October when there was no archaeologist on site but no excavation works were being carried out. The Council visited the site on 14 November when there was no archaeologist on site and noted there were drainage pipes being laid. The Council visited the site on 15 November when there was no archaeologist on site but noted no further excavations were required. The Council has also provided photographs from visits at the end of October 2019 and the end of January 2020. The archaeologist confirmed to the Council that they had visited the site each day between 30 September and 4 October and again on 8 October.
26. Mrs C submitted questions to the Council on 23 October. Mrs C complained to the Council on 18 November. The Council responded to Mrs C’s complaint on 4 December. The Council responded to Mrs C’s questions on 12 December and apologised for the delay. The Council provided a detailed response to the questions Mrs C had raised and explained the process followed to discharge the archaeology condition and confirmed that the drainage condition as written by the Planning Inspector was not pre-commencement whatever the intention may have been. In this circumstance, the Council explained it could not enforce the condition until the first property was occupied and would consider the expediency of doing so at that time. The Council confirmed it had not yet approved a drainage scheme.
27. Mrs C contacted the Council on 12 December to report concerns that excavation works were taking place without the presence of an archaeologist. Mrs C complained about the lack of a same day response on 13 December.
28. The Council responded to Mrs C complaint on 13 January 2020 and apologised for the slight delay in responding to her complaint. The Council also apologised that it had not provided Mrs C with its usual level of service on the particular day she called. The Council noted it would not always be possible to respond to reports on the same day they were made. The Council visited the site on 28 January 2020.
29. Overall, I am satisfied that the Council properly responded to Mrs C’s reports about works at the site. This included visiting the site and providing the outcome to Mrs C. The failure to respond immediately to one report in this context is unlikely to constitute fault and I have seen no other periods of unacceptable delay. Even if we were to consider the failure to respond to one report as fault, we would seek a response to the report and an apology as a suitable remedy. I note the Council visited the site in January 2020 and provided an apology to Mrs C in relation to her December report. The Ombudsman would not seek more.

Drainage condition

30. The Council has highlighted that its consideration of enforcing the condition relating to drainage was affected by the inconsistency between the statement contained in the text of the appeal decision and the wording of the condition imposed.
31. As set out above, the appeal decision included the statement “For practical purposes, this scheme and its management should be agreed prior to the commencement of development.” However, the actual condition reads “No building shall be occupied until..”.
32. The Council has reviewed the matter and considers the condition as imposed is not a pre-commencement condition despite the intention included elsewhere in the text of the appeal decision. The Council says it cannot read things into the condition that were not included and the condition runs from occupation rather than the commencement of development.
33. The Council has provided cogent reasons for its interpretation of the condition relating to drainage and this is a decision the Council is entitled to reach.
34. I note the Council advised Mrs C of this position December 2019 and that it could not enforce the condition until the first property was occupied and would consider the expediency of doing so at that time.
35. Mrs C has more recently contacted both the Council and the Ombudsman to say the properties were now occupied and to report new issues included work outside permitted hours and delay in completing footpath works. These are new issues which have not formed part of my investigation. It would be open to Mrs C to make a new complaint to the Ombudsman in due course if she remains dissatisfied with the outcome of any complaint about these matters to the Council.

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Final decision

36. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman