Lincoln City Council (16 011 866)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 03 May 2017

The Ombudsman's final decision:

Summary: Mr and Mrs C complain the Council did not act to prevent or minimise flooding into their garden in 2016. The Ombudsman has found evidence of fault. She has upheld the complaint and completed the investigation because the Council agrees to apologise and pay redress to Mr and Mrs C.

The complaint

  1. The complainants (whom I refer to as Mr and Mrs C) say the Council failed to assist them with a flooded garden in 2016. They complain the Council delayed taking action, did not act on instructions from the Upper Witham Internal Drainage Board (Drainage Board) and has not provided a long term solution.

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What I have investigated

  1. I have looked at events from 2016 onwards. I explain below why I have not looked back earlier actions.
  2. I have included a summary of what took place before 2016 purely to explain the background to the case.

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The Ombudsman’s role and powers

  1. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
  2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. I have spoken to Mr and Mrs C. I have also asked the Council questions and considered its responses. In addition I have spoken to the Compliance and Enforcement Officer (Enforcement Officer) at the Drainage Board and examined the information he has supplied.
  2. I have shared my draft decision with both parties and considered their responses.

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What I found

  1. From 2008 to 2011 the Council dealt with planning permission for a new housing development near Mr and Mrs C’s home. Conditions were put in place for surface water drainage and flooding. Building work commenced in 2011. In 2012 and 2013 the Council looked at reports from a resident in the same street as Mr and Mrs C about standing water in his garden. The Council consulted the Drainage Board and County Council (which is the Lead Local Flood Authority) during its planning enforcement investigation. The Council found the developer had complied with planning conditions. It could not establish the cause of the water logging in gardens. It stated there was no evidence showing the building works had caused the problem. There were no reports made to the Council about standing water in gardens in 2015.
  2. The complainants have Council owned land (previously used as allotments) directly behind their property. The housing development is nearby.

Events that I have investigated

  1. On 14 March Mrs C called Planning Enforcement and reported her garden was waterlogged. On 22 March a Planning Enforcement Officer (Planning Officer) and the Open Spaces Officer visited the site and looked at the allotment area at the rear of Mr and Mrs C’s home and the housing development. They inspected a french drain (which is a trench filled with gravel or a perforated pipe that redirects ground water) and found no sign of a blockage. They did note that ditches which would usually carry water away from the french drain were full of standing water. On 31 March Mrs C contacted the Planning Officer for an update because the water logging in her garden had got worse. She had also contacted the Drainage Board who would visit the site. The Planning Officer replied and told Mrs C there had been no blockages in the drain but some ditches managed by the Drainage Board were full. She said there was nothing to show one single cause for the water problem. It appeared to be “natural circumstances”. The developer had complied with planning conditions and the Drainage Board had previously confirmed the drains put in by the development would improve drainage.
  2. On 3 April Mrs C emailed the Enforcement Officer at the Drainage Board. (The Officer looked at this case in his capacity as an Enforcement Officer for the County Council). The Enforcement Officer visited the site five days later and met Mr and Mrs C. He noted there was an existing watercourse on Council land which needed maintenance. He would contact the Open Spaces Officer at the Council. On 13 April the Enforcement Officer left a message for the Open Spaces Officer. He contacted him again two days later stating the ditches on the allotment land needed attention. Because the ditches were on Council owned land it was responsible. He said “if work was carried out I believe it would have a positive impact on the flooding”. He met the Open Spaces Officer on site on 21 April. The Council agreed to reinstate an old ditch on the allotments running along the side and rear of the property next to Mr and Mrs C. The Enforcement Officer explained the Council was responsible for maintaining the ditch. The Open Spaces Officer agreed to get a contractor to clear the ditch and check a culvert nearby was clear.
  3. I have no records from the Council to show what action was taken after this in May. Mr C emailed the Enforcement Officer on 10 May and 21 May stating he had not been contacted by the Council. On 30 May Mrs C emailed the Open Spaces Officer asking when the ditch would be reinstated. Her garden was still waterlogged.
  4. On 15 June the Enforcement Officer contacted the Council asking when the work would be carried out. He felt it was only a small job. He says the Council did not reply. On 21 June the Open Spaces Officer met a contactor and the complainants at the site. They discussed planned works and Mr and Mrs C asked for the ditch to be extended along the rear of their garden. The Council agreed. The Open Spaces Officer then emailed the Enforcement Officer explaining the work would be carried out. I understand the Open Spaces Officer met with the contractor again on 24 June. He emailed Mr C stating that because of workloads it would be a “couple of weeks” before work started on the ditch.
  5. Mr C chased up the Council on 7 July because no work had started. The Open Spaces Officer responded the next day that work would start on 19 July. It was later than expected because a specific staff member was needed for the job and had been on leave. The Council updated the Enforcement Officer four days later. It said the culvert was clear and work to the ditch should start around 20 July. It could not guarantee the work would solve the water logging issue. I understand work did start by 21 July and was completed within two days. Mrs C emailed the Council on 26 July confirming the water had now drained from the garden. She was disappointed at the delay in carrying out the work. The Council says it does not have a record of the email.
  6. On 1 August Mrs C called the Chief Executive’s office and complained about the delay resolving the flooding in her garden. She had to buy a pump to help disperse the water and the problem went on for several months. All her garden plants were destroyed. The complaint was passed to the planning team. The Planning Officer emailed Mrs C the next day asking her to call and discuss the case. On 3 August Mrs C called the Chief Executive’s Officer. She explained she did not want to deal with the Planning Officer as she had lost faith in her abilities. Again a message was passed onto the planning team stating Mrs C wanted a different person to handle her complaint. On the same day the Enforcement Officer noted the Council was responsible for maintaining the ditch it had created and the culvert. The Council had done more work than requested and the case was closed.
  7. On 7 August Mrs C emailed the Open Spaces Officer. She reiterated her complaint about delay. Since the Council dug the ditch the problem had stopped. She still believed the root cause of the flooding was insufficient drainage links with the new housing development. Mrs C tells me that she called the Chief Executive’s office for a third time on 10 August for a reply to her complaint. She recalls being told that planning had already called her back. The next day Mrs C called the Chief Executive again. An Officer emailed the planning team and suggested the Planning Manager respond. On 22 August the Council logged a “retrospective work order” for works done in July.
  8. On 12 September Mrs C called the Council as she still had not received a reply to her complaint. On 26 September the Planning Manager wrote to Mrs C. He had dealt with the matter as a level two complaint. He apologised for any delay responding. The Manager said the Council had done all it could do. There was no clear cause for the water logging and it remained “unverified”. It was possibly a range of issues including high rain fall, high water table and land levels that had caused the flooding. There had never been any evidence showing the housing development was a contributing factor. The work done by the Council in July was as a “goodwill gesture”. At the end of the month the Enforcement Officer told Mr and Mrs C the Council now has “riparian responsibility” for maintenance of the drainage ditch at the rear of the property.
  9. In January 2017 Mr C contacted the Enforcement Officer because he was concerned the ditch was filling up and there would be further flooding. The Enforcement Officer subsequently visited the site and told the Council there was a blockage in the culvert. He recommended the Council fit a “weed screen” over the culvert to help prevent blockages. He also recommended an annual inspection by the Council where they should clear weeds and rubbish from the area. The Council confirmed at the end of January that it would carry out the work and this was completed by 30 January.

What should have happened

  1. The Council’s Planning Team looks at reports about planning conditions not being complied with. A Planning enforcement Officer will be allocated the case to investigate. If the report is about matters that have previously been investigated by the Planning Team (as in this case) the report will still initially be handled by a Planning Officer. However the matter may be passed to an Open Spaces Officer to pursue if it relates to Council land and the maintenance of watercourses (including ditches/ culverts etc).
  2. The Council has no duty to construct watercourses. However if it does decide to do so, such as creating a drainage ditch on its land, it them becomes the riparian owner of the ditch and has to maintain it.
  3. The Upper Witham Internal Drainage Board will look into problems with flooding. The Enforcement Officer may carry out his role in his capacity as the Enforcement Officer for the County Council as it is the Lead Local Flood Authority. The Enforcement Officer may liaise with the Council on a case. The Drainage Board has powers under the Land Drainage Act 1991 and can require the riparian owner of a watercourse to maintain it. The Drainage Board can suggest improvements but it has no power to force an authority to do improvement works.
  4. The Council has a two stage complaints process. Level one complaints are usually responded to within three weeks. If the complainant pursues the case it can escalated to level two. There is no timeframe for responding to level two complaints.

Was there fault by the Council

  1. I have found some evidence of fault by the Council.
  2. The Council’s complaint handling was poor in this case. Mrs C made her first complaint on 1 August 2016. The Council correctly passed it to a Planning Officer to respond in line with level one procedures. However Mrs C made it clear two days later that she did not want to deal with the Planning Officer. At that point the Council could and should have ensured the case was picked up by another Planning Team member and responded to with the information already provided by Mrs C. Instead no action was taken and Mrs C had to chase up the Council two more times before she received a response on 26 September. I also see the Council treat its response as a level two reply. Given this was Mrs C’s first complaint in 2016 on this subject I cannot see why it was treat as a level two matter. In my view it was a level one complaint and the Council should have issued its response within three weeks. Instead the Council delayed replying by over a month. It also failed to correctly update Mrs C about what was happening with the complaint and at one point seems to have told her it had been resolved without actually contacting her. I would also point out that level two complaints should have some timeframe attached to them so complainants know when they will receive a response as a matter of good practice.
  3. In respect of the flooding to Mr and Mrs C’s garden. I cannot say what caused the flooding because there is no definitive evidence showing the source. In view of that I cannot say the flooding was preventable. What I have looked at is how the Council dealt with the case once the flooded garden was reported to it. Officers did act quickly at the outset and met on site a week after receiving Mr and Mrs C’s request for help. However they left the situation stating there were no visible blockages and did not know the cause so no action was planned. That did not help move the case forward. Mr and Mrs C had to contact the Drainage Board whereas I consider it would have been reasonable for the Council to have done so given it had liaised with that body when previously investigating flooding in the area.
  4. Once the Council met with the Enforcement Officer he explained it needed to attend to ditches on its land. Six days later, on 21 April, the Council agreed to the works. I have not seen any evidence of the Council’s contact with its contractor after that date to discuss and book the works. The Council says it was a very busy period for the contractor who had existing work commitments. It also says a specific staff member was needed who was not available prior to mid July because he was on leave. I consider there to be evidence of fault. The Council has failed to show me that it took steps to arrange the works from 21 April. It has provided a work order but that was created after the works were completed. In addition the Council and the contractor did not go to the site until 21 June to discuss plans and meet Mr and Mrs C. That was two months after the Council told the Enforcement Officer it would do the works. During that time the Council failed to update Mr and Mrs C despite their garden still being flooded. I appreciate that resources are limited, the Council has to carry out other works and it was not obliged to create the ditch. However once it agreed to dig the ditch it committed itself to the work and had a duty to do it in a timely manner and keep Mr and Mrs C updated and explain the reasons for the delay. In my view the Council should have carried out the works sooner and if this was not possible it should have kept in touch with Mr and Mrs C to explain what was happening.
  5. In respect of moving forward I know Mr and Mrs C are concerned about maintenance of the ditch and culvert. The Council is the riparian owner of the ditch and so now responsible for its upkeep. The Enforcement Officer can require the Council to undertake maintenance. He has told me there should be annual inspections at the minimum. I also note the Council has carried out maintenance to the culvert as requested by the Enforcement Officer in January 2017. I would expect the Council to commit to regular checks and it may be beneficial for it to discuss this matter with the Enforcement Officer further.

Did the fault cause an injustice

  1. The poor handling of Mr and Mrs C’s complaint meant they were put to unnecessary time and trouble chasing up the Council. There was also a four week delay responding to them.
  2. The Council’s delay and lack of communication with Mr and Mrs C over the new ditch meant the complainants were left uncertain about what would happen.

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Agreed action

  1. I asked the Council to consider:
    • Paying Mr and Mrs C £150 for time and trouble pursuing their complaint and chasing up actions regarding the ditch;
    • Sending Mr and Mrs C a letter of apology for the faults I have identified;
    • Confirming with Mr and Mrs C what maintenance schedule will be in place for the ditch and culvert taking into account comments from the Enforcement Officer at the Drainage Board;
    • Sharing lessons learned from this case with officers.
  2. The Council has agreed to carry out those actions.

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Final decision

  1. The Ombudsman has found evidence of fault. She has completed the investigation and upheld the complaint.

Parts of the complaint that I did not investigate

  1. I have not looked back to events in 2008 through to 2015. That is because the Ombudsman expects a complaint to be brought to her within 12 months of when the complainant was aware of the problem.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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