Environment Agency (17 014 051)

Category : Environment and regulation > Drainage

Decision : Not upheld

Decision date : 20 May 2019

The Ombudsman's final decision:

Summary: Mr X complains the Environment Agency has failed to classify a water structure as a dam and has delayed undertaking works to prevent flooding. There is no fault in the process leading to the decision not to classify the structure as a dam. This is a matter of professional judgement. While the works have taken longer than originally anticipated this is not due to fault by the Environment Agency.

The complaint

  1. Mr X complains the complains the Environment Agency (EA) has failed to classify a nearby water structure as a dam and has delayed undertaking works to it to prevent the flooding of his property.
  2. Mr X says his home floods on a frequent basis causing financial loss and distress.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an authority’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)
  2. If we are satisfied with an authority’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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant;
    • made enquiries of the Environment Agency and considered the comments and documents it provided;
    • discussed the issues with the complainant;
    • sent my draft decision to both the Environment Agency and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. Mr X’s property and land has been subject to flooding. Mr X believes this is due to the inadequacy of nearby water structures. Mr X believes one part of the water structure should be classified as a dam and that this would then give the EA powers and responsibility for its maintenance and function.
  2. Mr X has been in communication with the EA about this matter and has requested that it classifies the water structure as a dam. The communications have included detailed analysis of the issues and Mr X has produced information to support his argument.
  3. The EA does not agree with Mr X that the water structure is a dam under the definition in the Reservoirs Act 1975. The EA has an independent national team with responsibility for regulating the Reservoirs Act 1975. This team is separate from the EA operational teams to ensure impartiality in its decision making. The EA reservoir safety team takes the view the water structure is not a dam. There is no right of appeal against a decision not to classify such a structure as a dam. The Reservoirs Act does include a provision which allows the Secretary of State to hold an inquiry into whether a relevant authority has failed to perform any function under the act.
  4. The EA says the purpose of the Reservoirs Act is to prevent escapes of water from large raised reservoirs through regular inspections and maintenance. It says the flooding problems experienced at Mr X’s property are caused by the design and operation of the water structure near his property and are not a result of poor maintenance, structural weakness or danger of collapse. It says even if the structure was classified as a dam under the act it would not be beneficial to Mr X as this would not result in changes to the structure or its function.
  5. The EA Reservoir Safety Team considers the water structure to be a tidal exclusion defence. It says it was originally designed to channel modest flood flows and not for the regular flood flows from a nearby river as is now the case.
  6. The EA acknowledges the flooding problems reported by Mr X at his property. It says that in July 2018 it agreed to remove the tidal exclusion weir as the functioning of the floodplain had changed since the scheme was originally designed in the 1980’s. The EA says this will not remove all risk of flooding but would reduce the frequency of smaller flood events.
  7. The EA started the project for works to the water structure in July 2018. In an email to Mr X’s councillor in August 2018 it gave an approximate start date of late September to November. It said the works could take between one week to one month as there might be unforeseen delays.
  8. The EA says as the design process evolved it was apparent the works would be higher than anticipated and so its procurement policy required it to go out to tender. This had a major impact on the timescale. The EA then changed its view and the tender became a design and build project not a build only project. This meant a longer tender timescale.
  9. The EA received tender applications and hoped the contract would be awarded by the end of February. This was not possible as more detailed information was required. The new closing date was 11 March. The EA is in the process of evaluating the applications.

Analysis

  1. Mr X believes the water structure contributing to the flooding of his property should be classified as a dam. The EA has taken account of Mr X’s views on this and has decided it is not a dam as defined by the Reservoir Act.
  2. The Ombudsman is concerned with administrative process and not the merits of decisions properly made. I am satisfied the EA is the correct authority to decide the designation of the water structure. The EA’s view is that the water structure is a tidal flood barrier. It says its primary function is not to collect or store river water but to hold back incoming tidal flows from the sea.
  3. In reaching its view the EA relies on past legal advice. It says it took legal advice on the potential dual function of flood embankments. The advice received states that it is the primary function of the structure that should be used to determine which regulation takes precedence. The EA says this is how it reached the decision in this case. It does accept this legal position has not been tested in court and it would be open to Mr X to challenge the EA’s interpretation in court.
  4. Mr X has criticised the EA’s use of the Institution of Civil Engineers (ICE) Guide to the Reservoirs Act Second Edition. The EA says the Government has not produced any statutory guidance on the Reservoirs Act. It therefore considers it is reasonable to rely on the ICE guidance in the absence of any statutory guidance or judicial steer.
  5. The EA and Mr X have had considerable correspondence about this issue. I am satisfied the EA has written to Mr X in detail explaining why it does not consider the water structure to be a dam. It has provided me with a copy of a letter dated 31 October 2017 which is a detailed response to Mr X’s arguments about the water structure.
  6. While Mr X may not agree with the EA’s reasoning, I am satisfied it has considered his views and reached its own professional judgement. There is no evidence of administrative fault in how the EA reached that decision so there is no basis for me to criticise it.
  7. However, the EA has agreed to undertake works on the water structure with the aim of reducing the flooding to Mr X’s property. The works will not eliminate all flood risks but it is hoped it will reduce the frequency of the incidents.
  8. The timescale for the works has slipped considerably. The EA gave Mr X indications of when the work would begin, first September and then November. To date the works have not started. The evidence provided indicates delay but I have to consider whether this is avoidable delay which would be fault.
  9. The chronology of actions provided by the EA in response to my enquiries does not show any periods of inaction by the EA. The chronology shows it has been following up on the case and taking regular action to ensure the works are carried out. It is unfortunate the timetable slipped due to the cost of the works requiring a tender process but I am not persuaded this is fault. It was only as the design process progressed that the EA knew the full costs and therefore that it would have to be subject to the tender process. While I appreciate Mr X’s frustration at the time it is taking, I am not persuaded the delay is due to fault by the EA.
  10. I note the EA accepts it could have done more to manage Mr X’s expectations around the completion of the works. It has apologised for the delay and will continue to keep him updated of progress.

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Final decision

  1. I will now complete my investigation as there is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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