High Peak Borough Council (16 011 553)

Category : Environment and regulation > Drainage

Decision : Not upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: The Council acted without fault in investigating water damage to a neighbouring property even though it could not show which owner has responsibility for a boundary wall between its property and its neighbour and it failed to properly record a surveyor’s visit.

The complaint

  1. In brief the complaint is that in responding to complaints about flood water running onto a neighbouring property the Council has failed to:
    • Properly record inspections of drains on its land and ensure the prompt repair of leaks;
    • Complete repairs to the property;
    • Resolve a dispute over a boundary wall quickly leading to delays in its repair.
  2. The complainant, whom I shall refer to as Mr X, says the leak on the Council’s land has caused damage to his driveway and property and other neighbours’ properties. Mr X wants the Council to repay him for the work undertaken to mitigate the damage and for the Council to take responsibility for drainage of its property.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He 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, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, he may decide to investigate if he considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))

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How I considered this complaint

  1. In considering this complaint I have:
    • Reviewed the information presented with the complaint;
    • Put to the Council my enquiries and studied its response;
    • Shared my draft decision with Mr X and the Council and reflected on comments received.

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What I found

  1. Mr X lives next door to a Council owned property. In February 2014 he complained to the Council that water from the next door garden had come onto his land damaging his drive and asked the Council to investigate. Mr X says when the surveyor came to look at the problem he agreed the Council had responsibility. The Council’s records do not record the conversation the officer had with Mr X. The officer did not follow up the visit in writing confirming what he agreed to do. But the Council commissioned work to dig out a trench and investigate possible causes of the water damage. The water leak or run off is now causing the driveway paving to become loose and presents a trip hazard. Neighbours have also experienced similar if lesser damage which Mr X believes shows this is a drainage problem caused by water coming from the Council’s land.
  2. A boundary wall separates Mr X’s home from the Council owned neighbouring home. Water seepage is causing damage. The Council and Mr X cannot agree to whom this wall belongs, and therefore who should repair or maintain it. The title deeds in the Council’s records are silent on the matter. It has no record of undertaking any work to repair or regularly inspect the condition of the wall which it says means it is unlikely to belong to the Council. The only definitive decision on the boundary wall and responsibility for it lies with the courts.
  3. Since Mr X presented his complaint the Council has:
    • Reviewed its repair and works records to see if any work has been undertaken on its property that may have led to an increase in water runoff or damage to drains;
    • Inspected the wall and garden;
    • Commissioned the digging out of a 2 foot deep trench;
    • Installed a land drain to discharge any water from the newly dug trench into a gulley to take away any excess run off;
    • Used dye testing of the drains in place to decide if there are any leaks needing repair and found there are none;
    • Decided from inspections of the trench which show no excess runoff, the cause of the damage to the wall and Mr X’s driveway is not a result of problems on its land.
  4. In responding to my enquiries the Council says it cannot say what is causing water to emerge on Mr X’s land. It has not found anything on its land that shows it is at fault. It intended to dig a four foot trench but could not do so because other drains and utility pipes lie at just below two feet and so it could only dig that far down. In commenting on my draft decision Mr X says the trench could not go below two feet because of the stony ground. In his view the trench did not go deep enough to find the water source. Inspections show no excess water abutting the wall or seeping through it or going under it. There is no evidence of damaged drains and so the Council cannot account for why water is coming up or flowing on to Mr X’s drive. Mr X says the water coming onto his property is clean, does not appear to be from foul drainage and he believes must come from a clean water source above his property.
  5. On 19 May 2015 the Council’s contractor inspected the site. He checked whether ground water from under the front gardens of properties in the street had leaked through the retaining wall between Mr X’s home and the Council owned property. The contractor recorded that following dye testing of both the foul and surface water systems the tests did not show any leaks. The land drain in his view was adequate. Mr X says inspecting the property in dry conditions does not show the problem and the Council should inspect it when the water is flowing onto his land.
  6. The Council’s legal advisers say the deeds are silent on boundaries and without further evidence from Mr X it cannot decide whether the retaining wall is its responsibility, Mr X’s responsibility or a jointly owned wall.
  7. In an email to Mr X the Council explained it could “...only be held responsible if the flooding/flow has come from a blocked/damaged drainage system that [the Council] is responsible for, or [it] has physically altered something like ground level hard standing or drains that has resulted in a change of rates or speed of flow. Any flow from land run off or ground water due to topography is classified as natural flow and has to be accepted by the lower level land owner.” The Council says it has not altered the ground levels or undertaken any work that alters the natural flow. It is the Council’s view natural flow is the likely cause and in law it is not responsible for that.
  8. In an earlier email in December 2014 the Council said its contractor suggested that a natural spring may be the cause of the problem. This might account for the ‘clean’ water Mr X observed. In the contractor’s view the new gully diverting water away from the wall should prevent any problems from run-off from the Council’s land. Mr X says water still comes onto his land causing damage and he wants to stop it so he can repair the damage. In his view the Council took far too long to reach its view and it is not doing enough to resolve the problem.

Analysis – has there been a fault leading to injustice?

  1. My role is to decide if the Council acted without fault in researching whether anything on its land has caused the water damage to Mr X’s driveway. It is not to decide liability for any damage or responsibility. Mr X can present a claim to the Council’s insurers or to the courts for damages if he can show the Council is at fault. Questions over the ownership and responsibility for the boundary wall are important property issues that only the courts can definitively decide. Therefore it is reasonable for the Ombudsman to expect Mr X to refer any property issues to the courts. As he has that alternative remedy the Ombudsman cannot make any further decision on the matter of responsibility or liability.
  2. There is no follow up letter after the surveyor’s visit to Mr X to challenge his recollection of what the surveyor said to him. That is a fault. Good practice would be to follow up visits with a letter or email outlining what had been said and what would happen next. However, I cannot say this fault led to an injustice for the Council continued to explore whether the cause of the damage from water escaping on to Mr X’s land was due to a problem on its land.
  3. The Council’s account of its legal responsibility (paragraph 12) sets out its legal adviser’s view of the settled law on natural flow from one area of land onto another. I cannot challenge that view. Only the courts can say if this is correct in all the circumstances of this case.
  4. Mr X says clean water is observed flowing onto his land. That may suggest several possible sources: a natural spring, a fault in water service pipes to a neighbouring house, or inadequate surface water drainage. There may be other sources. The Council has investigated the water surface drainage issue and decided it is not the problem. Mr X suggests a drainage expert be employed to survey the Council’s and Mr X’s land. That is something I cannot rule on. Mr X could put to the Council a claim for the damage for its insurers to consider. They may decide a water expert should carry out a survey. If not satisfied with the insurer’s response Mr X could ask the courts to rule on the cause and liability for the damage. It is reasonable for the Ombudsman to expect Mr X to use his alternative remedy for he cannot rule on matters of legal liability for damage. The courts can give a definitive binding ruling for Mr X.
  5. That said I may consider if the Council acted with fault in responding to Mr X’s concerns. It inspected the property, researched its records to see if there had been previous problems, whether it had carried out any work to the property and to the wall. It took advice from its lawyers on responsibility. I understand Mr X’s sense of frustration at the Council’s response because it seems clear to him it is water from the Council’s land that is causing his problems. That is not something on which I can give a definitive answer. However, the Council has undertaken the research and investigated possible causes including dye testing of surface and foul water drainage to check if they are damaged or leaking. The tests showed no leaks or damage.
  6. Therefore while I understand Mr X’s disagreement with the Council and his frustration because two years on he feels no further forward I cannot find fault in its actions. It is for the courts to decide if the problem arises from activity on the Council’s land and who is responsible for repairing and keeping in repair the boundary wall.
  7. The Council failed to properly follow up it surveyor’s visit with a letter in February 2014 but overall it acted without fault in exploring the possible causes of water entering Mr X’s land.

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Final decision

  1. Save for the failure to properly record and follow up the surveyor’s visit in February 2014, the Council acted without fault in investigating the possible causes of water damage to a neighbouring property.

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Investigator's decision on behalf of the Ombudsman

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