Summary: Mr X complained the Council failed to take action against surface and foul water flooding from a nearby development. The Council was not at fault in its investigation of flooding issues, or in its consideration of planning applications for the development. There was fault in the Council’s complaint handling, but this did not cause Mr X significant injustice.

The complaint

1. Mr X complained the Council failed to take action against surface and foul water flooding from a nearby development. He said the site lacks adequate or approved drainage, and contaminated water flows from the site onto the highway and neighbouring land, including a watercourse.
2. Mr X said the issue has been ongoing for several years and, as well as contaminating the land and a nearby pond, the water damaged fencing, the access road, planting, shrubs, hedges and trees of his property.

What I have investigated

3. Usually, we would not investigate late complaints which are when someone takes more than 12 months to complain to us about actions by a council. As we received the complaint in January 2024, we would usually only look back at events from January 2023.
4. We exercised discretion to investigate the Council’s actions from December 2016 as this was the date the evidence shows Mr X making a report about flooding and contaminated water from the site. In addition, the issue remains ongoing, and Mr X has pursued the matter throughout that period.

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The Ombudsman’s role and powers

5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mr X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

11. 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.
12. 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.
13. 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.
14. 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)

The Council’s Planning Enforcement and Monitoring Plan

15. The Council aims to remedy planning harm being caused by breaches of planning control. Its enforcement and monitoring plan states:
16. “To undertake works without first obtaining planning permission is not a criminal offence and the planning legislation specifically allows for the submission of planning applications for development already undertaken. In this respect, the enforcement of planning control does not therefore seek to punish people for undertaking works without first obtaining planning permission. The key consideration in deciding whether to take formal enforcement action is, if a planning application had been submitted, would that application have been refused or only granted with conditions.”
17. Where a breach of planning control has occurred, the Council will consider the planning merits of the development being undertaken and decide on the most appropriate of action. The Council will also consider the public interest and the expediency of formal enforcement action.
18. The fact a breach of planning control has occurred does not automatically mean the Council will take formal action.
19. The Council will not take enforcement action over minor breaches which cause limited or no planning harm. Instead, it will advise the offender of the breach and of their right to make a retrospective planning application.
20. Where appropriate, the Council will seek to negotiate with the offender and consider options to address the planning harm resulting from the breach. The negotiation process may involve works to remedy breaches of planning control or involve a retrospective planning application.
21. When investigating a breach of planning control, the Council will consider the likelihood of planning permission being granted for the development upon application.
22. The Council considers applications for retrospective planning permission in the same way as those for proposed development. The Council may suspend any formal enforcement action whilst it considers a retrospective planning application.

What happened

23. I have summarised below some key events leading to Mr X’s complaint, including some details of the planning application process. This is not intended to be a detailed account. I aim to generally describe what took place. My references to the planning applicant also include their agent. During the process, there was a change in site owner, meaning a change in the planning applicant. I have not detailed this change, but I mention it for context.
24. The development site contains several homes, and a communal block with toilet and washing facilities. The site is not connected to the mains sewer. Some homes have septic tanks or cesspits. Waste water from the site discharges into a drainage ditch. Mr X complains the waste water is contaminated with sewage. He also complains the site lacks adequate drainage for the number of homes present, resulting in the drainage ditch overflowing onto the highway and flooding bordering fields. The water also reaches Mr X’s property and a nearby pond which connects to a local watercourse.
25. The development owner (the applicant) applied for planning permission for residential homes on the site and utility blocks in 2007. The Council refused, but the planning inspector granted permission on appeal in 2009. However, the granted use of the land was temporary and came with conditions.
26. In 2016 the applicant asked for permission to keep using the development as a residential site, including associated infrastructure. The Council refused permission and the applicant appealed to the planning inspector in 2017.
27. Mr X contacted the Council’s Environmental Health service in December 2016. He was concerned a paddock on his land became flooded with contaminated water. Mr X said the land did not flood until recently. He believed water run-off from the development site caused the flooding, making his paddock unusable.
28. The Council emailed Mr X in February 2017 following a site visit the previous week. It agreed grey water (including what looked like detergent) was discharging from the development site into a drainage ditch. It also said flooding to bordering land coincides with where the amenity blocks on the development site sit, suggesting the occupants are not always using their cesspools. However, the Council found no evidence of the dye it put in the toilets or cesspools. It said this suggests foul water is not a problem. The Council told its Planning service and the Environment Agency about Mr X’s concerns, but said its Environmental Health service had limited powers, as the problem is not foul water. It said it can issue a licence controlling disposal of foul, grey, and surface water once the site has planning permission. The Council said it made the site owner aware of the issue.
29. Mr X contacted the Council again in May 2017. He considered the intensity of use of the development site significantly impacted existing drains, causing flooding and possible environmental impact. He asked what action the Council could take.
30. The Council said there was nothing it could do until the site had planning permission. It confirmed it told the Environment Agency, but they said the problem was not a high enough priority to look into. The Council suggested Mr X contact them if he had not already done so.
31. Mr X contacted the Environment Agency after fresh flooding, including grey sludgy deposits. It agreed to investigate.
32. The Environment Agency contacted the Council in July 2017. It passed on Mr X’s concerns about the number of homes on the development site being more than the soakaway system was suitable for, and more than planning permission. It mentioned planning permission for the site was up for renewal shortly, giving an opportunity to upgrade the site to cope with the intended use. This could include a septic tank or package treatment plant.
33. The Council confirmed the applicant must give a detailed scheme for water supply and foul waste, connected to the sewer or treatment works, or discharged to a septic tank or cesspool approved by the Council.
34. The Environment Agency supported the conditions, but said any scheme should support the true occupancy of the site. It also said it would visit the site to test pond water.
35. An Environment Agency officer visited the site in June 2018. They found a smell of sewage around the pond, with dark water and a fine black silt. Liquid was coming from a pipe connected to the field drain, despite the lack of recent rainfall. They tested the water and found high levels of ammonium. The officer also found small pools of dark coloured liquid in the centre of an otherwise dry field, and a smell of sewage.
36. The officer found water in the drainage ditch next to the site also showed high levels of ammonia. There was a pipe entering the ditch from the development site. It contained solids including decayed toilet paper and dark liquids, with a strong smell of sewage. The officer considered the solids in the ditch was raw sewage from the development site, which fills the ditch and liquids from it enter the field via the field drain system. This caused pooling of sewage on the field before it enters the pond.
37. The planning inspector allowed the 2017 appeal in August 2018. Again, this permission came with conditions. The applicant had to submit a Site Development Scheme (SDS) within three months, including details of foul, surface, and water drainage facilities.
38. The applicant applied to discharge some planning conditions in November 2018, including about drainage. The Council consulted on the plans, but could not discharge the conditions.
39. That was because the Council’s Environmental Health service asked for more information, including specific plans for each home and their connections to each cesspool.
40. The Lead Local Flood Authority (LLFA) did not recommend discharge of the condition on surface water drainage, due to a lack of consideration about flood risk. After further consultation, it also queried the permeability of the planned block paving on site.
41. The Environment Agency was also unable to recommend discharge of the drainage condition. It considered the cesspits on site were too small, needing regular emptying. And it highlighted the issues reported with the cesspits on site, some of which it said owners improperly connected to the drainage ditch. It suggested contacting Thames Water about connecting the site to the sewage system, or providing details of a suitable alternative.
42. The Council then received a retrospective application to change the use of the land to residential in March 2020, including details of a sewage treatment plant. The Council carried out consultation but again could not reach a decision.
43. Mr X complained to the Council in May 2021 about delay deciding planning applications for the site. He also complained the Council failed to take enforcement action about the use of the land for residential purposes, as this use had expired under the existing planning permission.
44. The Council responded to the complaint in June 2021. It said:
• It received details from the applicant to discharge drainage conditions in November 2018. Statutory consultees considered the applicant needed to provide more information. There have since been further consultations and the application is awaiting determination by the Council.
• It accepted there had been a delay deciding the discharge application.
• Its complaints policy excludes complaints where a right of appeal exists, such as with planning applications. It also excludes complaints about an issue known about more than twelve months ago. It said the determination date for the discharge application was January 2019, more than twelve months ago, so it would not uphold this part of Mr X’s complaint.
• On stopping the use of the site, the Council said the applicant asked to discharge planning conditions within three months of the appeal decision, so they had complied with the planning inspector’s decision. It said it was considering how best to progress the site and issue a lawful decision. It said this part of Mr X’s complaint was also outside the twelve-month period, as the end of the appeals period was November 2019. It therefore did not uphold this complaint either.
45. The Council emailed Mr X in December 2021 after a site visit. It said it found a field next to Mr X’s access road extremely waterlogged. It understood this gradually got worse over the last five years and Mr X can no longer use it for agriculture. The application site mainly drains across this field towards a channel ending in a pond at Mr X’s gate. The application site does not have main sewage and many plots have septic tanks or cesspits. These have overflown in the past and contaminated water ran into the bordering field. The Council said there was some standing water on Mr X’s access road, but no foul odour and no flooding of his driveway. It said it would tell the planning department. Once it decides the planning application Environmental Health will consider whether it can issue a licence for the site, and then ensure occupants meet licence conditions.
46. The Environment Agency wrote to the Council on 23 December 2021 following its consultation. It said it could not recommend discharge of conditions from a water quality perspective, as it is not clear which plots on site connect to the drainage. It also had concerns about the site’s ability to manage its grey waste, as it did not consider the drainage in place would be enough to serve the whole site. It said it continued to receive reports of grey waste from the site causing pollution, with the latest report being in November 2021. It said it would not recommend approval until the Council sought connection to the foul sewer. If this is not possible, then the site should connect to a small package treatment system.
47. The Council wrote to Mr X in March 2022 after an enquiry from a local councillor. It said the septic tanks and cesspits on site can overflow when not pumped out, leading to contaminated water running across the bordering field and main road. The Council can enforce against this under licensing law. However, the Council cannot issue a licence to the site until it has full planning permission. As the planning service has not yet discharged the planning conditions, Environmental Health cannot issue a licence. The Council also said, during the site visit in December 2021, Environmental Health officers found no evidence of a statutory nuisance. The Council referred the issue to the Environment Agency, but they are prioritising higher risk incidents with significant risk or harm to the environment. The Council said it would write to the landowner confirming it will monitor the site.
48. The Council received another retrospective planning application to change the use of the land to residential in September 2022, including details of a water treatment plant. The Council consulted on the plans, but a decision remains outstanding.
49. The Lead Local Flood Authority said it objected to the applicant’s drainage plans due to inadequate information about the proposed surface water drainage scheme. It said an infiltration map from the British geological survey 2016 shows a high risk of groundwater flooding. This meant the applicant needed to further investigation, and put suitable measures in place. The applicant will need to carry out groundwater level recording over winter and provide a schedule for the surface water drainage.
50. In October 2022, the Environment Agency said it could not provide a detailed response and was only responding to high-risk cases. It listed the three choices from the Government guidance drainage hierarchy (connection to public sewer, package sewage treatment plant, and septic tank).
51. The applicant applied to discharge planning conditions in November 2022, including a condition on drainage.
52. Two local councillors called in the discharge application, so it needed to go to the Council’s planning committee. The next available meeting was January 2023. However, the Council needed more information, so it sought an extension of the determination period with the applicant until February 2023. The application remains undecided.
53. A local councillor emailed the Council in December 2023, following up on concerns about sewage discharge from the site. They said the Environment Agency identified sewage discharge in 2018, and residents often see sewage on the road passing the site, which vehicles spray into the air.
54. Internal Council emails in January 2024 state officers only saw sewage on one occasion, in August 2021, and that was affecting a drainage ditch. This was due to a leak which the owner repaired, and did not affect the highway. Officers found no statutory nuisance at the site in December 2021, and found no odour, sewage, or flooding at a site visit earlier in January 2024. They found a bordering field contained standing water, but the field has drainage issues and there was no odour and nothing to suggest it was more than just water. The Council considered, without a public health risk, there was nothing for its Environmental Health service to enforce.
55. The Council received a report from the applicant’s drainage engineer in May 2024. The engineer recommended moving on to a detailed design of surface water drainage, to include a one metre freeboard between the base of the infiltration system and the highest groundwater point.
56. The Council received consultation responses from the Environmental Health service, the Environment Agency, and the LLFA in June 2024.
57. The Environmental Health service advised the following:
• Each home must have its own water supply which meets required standards.
• The applicant should connect the site to a public sewer. If the applicant uses a water treatment plant this will need to the Council must approve it. The applicant will need to give technical details, construction details, and details of the outfall.
• It had concerns effluent draining onto bordering land could create a public health nuisance to neighbours.
58. The Environment Agency gave guidance on foul drainage and pollution prevention. It said granting planning permission does not guarantee it will grant an environmental permit.
59. The Lead Local Flood Authority recommended refusal of the proposals. It said the applicant failed to show a method of surface water disposal in line with the drainage hierarchy, so they had not shown the development will not increase flood risk elsewhere. It set out the added information needed, including infiltration rate testing, storage calculations, surface water drainage layout, and a maintenance schedule.

My investigation

60. The Council told me it worked with the previous and the new planning agent to ensure submission of an application to discharge relevant conditions on drainage. It is considering the application. This has taken longer than hoped, due to a several different applicants and a new planning agent.
61. The Council said it has not seen any evidence of surface or foul water flooding affecting other land. Its enforcement investigation found a planning breach, as the applicant had not discharged a planning condition. But the Council did not consider it was not expedient to act due to a live planning application. The Council closed its enforcement investigation until it decides the application.
62. The Council said it is waiting on further responses from the Environment Agency and Environmental Health. If they raise no issues, it will take the application to its planning committee for a decision.
63. The Council said there is no evidence to suggest a current public health risk, and no evidence the site is currently affecting neighbouring residents.

Analysis

64. Despite first securing planning permission several years ago the applicant has not, so far, put in acceptable drainage plans. By the Council’s own acknowledgement, this has taken far too long to resolve.
65. That said, I have not seen evidence of significant fault by the Council in the application process. It consulted the relevant professionals on each application relating to drainage at the site, but unfortunately the plans have not been acceptable. That is not the fault of the Council.
66. The Council has missed determination dates, but that was because it needed more information or further action from the applicant.
67. In its complaint response, the Council recognised there had been delay discharging drainage conditions, and I appreciate this has remained unresolved for several years. However, I have not seen evidence of drift or lengthy periods of inactivity on the Council’s part. It took the steps it could in the circumstances to progress matters. It is up to the applicant to complete suitable drainage plans.
68. Mr X wants the Council to take enforcement action. The Council has not taken enforcement action against the applicant as it is waiting for a decision on the planning application. If planning consent is granted, with conditions the applicant complies with, then this would resolve the situation. If planning consent is refused, with planning issues not resolved through negotiation, then the Council can consider formal enforcement action.
69. Enforcement action is discretionary and must be proportionate. Councils will often work with applicants to bring about informal solutions or ask them to put in a planning application to regularise the breach. The Council has tried to work with the applicant to plan an acceptable drainage system. This is in keeping with the Council’s enforcement plan, and with Government guidance. I have therefore not seen evidence of fault in the Council’s approach.
70. In response to my draft decision on this complaint, Mr X referred to the planning inspector’s decision from August 2018, granting permission for the use of the site. A condition of the planning permission was the applicant had to submit a Site Development Scheme (SDS) within three months, including details of foul, surface, and water drainage facilities. The planning inspector said, if the Council refused to approve the SDS, or failed to reach a decision within 12 months, this would result in a new appeal. The planning inspector also said the use of the site, which they granted permission for, would stop if the applicant did not comply with the conditions.
71. Mr X said the Council is at fault for not deciding on the SDS within 12 months, and for failing to take enforcement action over what is now unauthorised use of the site.
72. The Council considered this, and acknowledged the applicant is technically in breach. However, planning enforcement is discretionary. The Council does not consider enforcement action would be proportionate in this case, as it is working with the applicant to achieve an acceptable SDS.
73. Rights of appeal are available to planning applicants. A council cannot make an appeal against itself over a decision, or for lack of a decision. It is therefore for the applicant to bring the matter back before the planning inspector if they so wish. The planning inspector could then make a decision on the SDS.
74. I do not consider the Council is at fault for not approving the SDS yet, as there are still outstanding issues to resolve before the applicant’s drainage plans will be acceptable.
75. I also do not consider the Council is at fault for not taking enforcement action against the applicant, because it properly considered the circumstances and is entitled to deal with breaches informally.
76. I found the Council considers the sewage contamination found in water discharged from the development site resulted from a leak, when occupants did not empty their septic tanks and cesspits. The Council is satisfied the site is not currently causing any public health risk.
77. I appreciate Mr X disagrees, and remains concerned about contaminated water discharge from the site. However, the only independent evidence confirming the presence of sewage is now several years old. There is no further up to date evidence, and the Council’s records from its site visits show Environmental Health officers consider this is no longer the case.
78. Mr X would like further independent testing of the drainage ditch, nearby land, and watercourse in case of contamination. I do not consider the Council is at fault for not performing such testing. Officers have assessed drainage conditions in 2024 and did not find any health risk, and the Environment Agency does not consider the site is high enough priority.
79. Mr X would also like the Council to carry out remedial work to his land and property which suffered flood damage. In 2021, the Council found excess water in a field beside Mr X’s access road. It suggested drainage at the site had overflown in the past. I note the Lead Local Flood Authority indicated the area is a high risk for groundwater flooding. And the Environment Agency consultation response raised concerns about whether the drainage in place can serve the whole development site.
80. However, I cannot say what caused Mr X’s land, or fields next to the development site, to flood. Further evidence or testing would be needed. And Government guidance emphasises that landowners have the primary responsibility for flood prevention. I do not consider the Council is at fault for any flooding which may have occurred in this case.
81. The Council, and the Environment Agency, have investigated the situation. This has included site visits, water flow testing, and sampling. The Council also met with Mr X and considered his concerns. The Council has provided cogent reasons for its view there is not currently a nuisance or public health risk. It also confirmed it cannot put licensing measures in place until it grants planning permission. These are decisions the Council is entitled to make. I have seen no evidence of fault in the way the Council reached these decisions. I therefore cannot question them.
82. I found the Council at fault for its complaint response in June 2021. The Council said Mr X’s complaint was out of time, but it proceeded to address the issues anyway. It then said it did not uphold Mr X’s complaint because it was out of time.
83. The issues Mr X complained about were still ongoing situations. The Council should only say a complaint is out of time if the complainant has been aware of the issue for more than twelve months and should have complained within that time. If that was the case, the Council should have refused to consider the complaint, not consider it but then not uphold it on the grounds it was late.
84. However, since the Council did provide findings, and an explanation of the situation, I do not consider Mr X suffered significant injustice.

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Final decision

85. I completed my investigation. The Council was not at fault in its investigation of flooding issues, or in its consideration of planning applications. There was fault in the Council’s complaint handling, but this did not cause Mr X significant injustice.

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Investigator's decision on behalf of the Ombudsman