Summary: We will not investigate this complaint about the way the Council decided to approve its application for flood attenuation. We have not seen sufficient evidence of fault in the Council’s actions to justify our involvement.

The complaint

1. The complainant, I shall call Mr B complains about the Council’s plans for flood attenuation. He says:
• The Council’s scheme design relies on disprovable assumptions and the Officer who reviewed the application was conflicted.
• The Council refused to meet on site during rainfall.
• The decision should not have been taken under delegated authority .
• The Council’s Covid Protocol, which was followed in determining the application, was not lawful or correct.
• The review of the Council’s response to Mr B’s request for information was not carried out by an impartial officer.
2. Mr B wants the Council to:
• Acknowledge the errors in its plans
• Apologise for the inconvenience it has caused
• Compensation for his financial losses; and
• Confirm his land is no longer required for the scheme
3. Alternatively, he would consider sale of his land to the council.

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The Ombudsman’s role and powers

4. The Ombudsman investigates 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 may decide not to continue with 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, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,

(Local Government Act 1974, section 24A(6))

5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. I considered information provided by Mr B and the Council. And information on the Council’s website.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
9. Councils should approve planning applications in line with the policies in their development plans unless other material planning considerations indicate otherwise.
10. Material planning considerations concern the use and development of land in the public interest and include:
• Local and national planning policies
• Highway issues
• Protection of ecological and heritage assets
• The impact on neighbouring amenity
11. Planning considerations do not include things like:
• The impact of a development on property value
• Private rights and interest in land
12. Councils may give competing planning considerations different weight when making their decision.
13. The Council publicised its planning application for flood attenuation.
14. Mr B says the Council refused to meet him on site during rainfall or walk the entire site. However, I cannot criticise the Council for this as there is no statutory duty requiring a site visit.
15. Mr B objected to the scheme. He also engaged an agent who put in a report, also objecting to the scheme.
16. The Ombudsman looks at procedural fault in how decisions have been made, we are not an appeal body. We cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
17. The Planning Officer’s report on the proposals includes a summary of the objections received. It also specifically refers to the report submitted by Mr B’s agent. The Council gave its rebuttal to the points raised by the agents. It also detailed the relevant policies which apply to the case and explained why it considers the proposal overcomes the objections.
18. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so including Mr B’s representations.
19. Mr B also complains the Council should not have decided the application under delegated authority because of the number of objections from multiple parties. And because the application formed part of a wider range of flood attenuation measures.
20. The Council confirms it made the decision under its protocol for dealing with planning applications during the Covid-19 pandemic. This allowed the service Director for planning and sustainable development to determine all applications which would normally be referred to committee. This protocol was in place when the Council decided the planning application.
21. Mr B says the Council’s review of its response to his request for information was not carried out by an impartial officer. If he is dissatisfied with the Council’s review of its response, it is reasonable to expect him to refer this point to the Information Commissioner’s Office (ICO). This is because the ICO is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. They have powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Final decision

22. We will not investigate this complaint. We have not seen sufficient evidence of fault in the way the Council dealt with the planning application to justify an investigation.
23. It is reasonable to expect Mr B to refer his concerns about the response to his request for information to the ICO for the reasons given above.

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Investigator's decision on behalf of the Ombudsman