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Tameside Metropolitan Borough Council (17 014 772)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 04 Mar 2019

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to adequately respond to her concerns about ongoing flood protection after a culvert collapsed and flooded her garden in 2017. The Council was at fault. It failed to respond to all of Miss X’s concerns which caused her frustration and uncertainty. It was also at fault for the delay and handling of Miss X’s complaint which caused her further frustration and uncertainty. The Council agreed to pay Miss X £150 in recognition of these faults.

The complaint

  1. Miss X complained the Council failed to adequately respond to her concerns about a culvert which collapsed and flooded her garden in 2017. Miss X said the Council failed to answer her concerns about ongoing responsibilities for the culvert to prevent further flooding, which has caused her uncertainty.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’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. I spoke to Miss X about her complaint.
  2. I considered the Council’s response to my enquiries.
  3. I considered relevant guidance and case law regarding riparian responsibilities.
  4. Miss X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

  1. A culvert is an underground structure that water can flow through. The structure which is usually a tube or pipe encloses water which would otherwise flow naturally.
  2. A watercourse is the channel that a flowing body of water follows. A watercourse can be for example a river, brook, stream, beck or a culvert. A watercourse may run into a culvert.

Riparian landowner rights and responsibilities

  1. A riparian landowner is the owner of land that is either next to a watercourse, or has a watercourse running through or under the land. The Land Drainage Act 1991 requires the landowner to maintain the watercourse to such a condition that the flow of water is not impeded.
  2. Riparian landowners have duties to other riparian landowners, the community, and the environment, such as
    • letting water flow through their land without obstruction, pollution, or diversion which affects the rights of others.
    • Keeping structures such as culverts clear of debris.
  3. Riparian responsibilities require the landowner to undertake certain works or maintenance in the upkeep of the watercourse. Government guidance says the landowner must let water flow naturally. The guidance says landowners may have to remove blockages if they could reduce the flow of water or cause flooding to another landowner’s property.
  4. A landowner whose land includes a culvert has duties to prevent flooding.
    • there is a duty on those responsible for culverts to maintain them so as not to allow flooding to occur.
    • a landowner has duties even if he did not construct the culvert himself. The landowner is under a duty to do what is reasonable to prevent flooding.
  5. If a riparian owner fails to carry out his or her responsibilities under the Land Drainage Act, or if anyone else causes a watercourse to become blocked or obstructed, councils may take enforcement action by serving a notice under section 28 of the Act. The order would usually require the landowner to carry out remedial action so water can flow.

Managing flood risks

  1. The responsibility for managing flood risk lies with several bodies. These include:
    • The Department for Environment, Food and Rural Affairs (Defra)
    • Environment Agency (EA)
    • Councils
    • Water and sewerage authorities
    • Internal Drainage boards
    • Highways Authorities.
  2. Lead Local Flood Authorities (LLFAs) are county councils and unitary authorities. LLFAs lead management of local flood risks (i.e. risks of flooding from surface water, ground water and ordinary, smaller, watercourses). They prepare and maintain strategies for local flood risk management in their areas. They also carry out works to manage local flood risks in their areas. LLFAs are responsible for investigating significant and local flooding incidents and publishing the results of such investigations.

New developments and flooding

  1. If a new development causes or worsens flooding, it may be that the aggrieved party could seek redress from the local planning department, if the development did not have planning permission or failed to comply with planning conditions. The aggrieved party could notify the local planning department who will have the discretion as to whether to take planning enforcement action.

What happened

  1. Behind Miss X’s street is a brook. The brook runs at the rear of the properties on Miss X’s street into an underground culvert. The culvert runs under several back gardens including Miss X’s. There were no records of the route the culvert took underground, and both the Council and Miss X were unaware it ran under hers and other neighbouring properties.
  2. In September and October 2017, the culvert collapsed in two places. It collapsed under the garden of one of Miss X’s neighbours, and then under Miss X’s garden, because a build-up of debris inside it caused a blockage. The blockage in the culvert meant water could not pass through it, instead flowing overland which caused flooding in several gardens including Miss X’s.
  3. To fix the collapsed culvert the Council, as the LLFA, completed emergency works including deep excavation within Miss X’s garden. The Council and the Environment Agency (EA) replaced the culvert, and installed two access manholes, one of which is within Miss X’s garden. The Council also installed an overland water channel alongside the brook to intercept the flow of water should the culvert become blocked or full in the future.
  4. In November 2017, Miss X complained to the Council and sent a copy to her MP. Miss X said she was happy with the works completed by the Council to fix the broken culvert. However, she had concerns about future flooding protection and said the Council had not adequately answered her concerns. Miss X’s complaint related to the following;
    • The Council had reminded her of her riparian responsibilities. Miss X said she had concerns how the Council would ensure the other residents keep to their riparian responsibilities.
    • Ongoing debris in the brook. Miss X said as her property was downstream she had concerns debris upstream would collect in the same place. Miss X had concerns that because the Council installed a manhole to the culvert in her garden, she would be solely responsible for ongoing maintenance.
    • Whether a housing estate built in 2006 contributed to the flooding. Miss X said the planning approval had a condition attached to it for the developer to divert and replace the culvert. Miss X asked whether the developer replaced the culvert prior to the construction of the development.
    • Whether a new housing estate planned upstream from the brook had a suitable flood assessment.
  5. The Council wrote back to Miss X in January 2018, however it sent the letter to the MP by mistake. It sent a copy of the letter to Miss X in February 2018 and apologised for the delay and mistake.
  6. The Council said until it collapsed, it did not know the culvert’s plot and it had no records of it. That only became clear once it completed the excavation works. The Council said it would contact landowners to remind them of their riparian responsibilities to ensure they maintain their land. The Council said it had referred Miss X’s concern about the 2006 planning condition to its planning department and would write back to Miss X by the end of January 2018. Regarding future flood proofing it said the new development upstream had a flood management strategy in place to deal with adverse weather and excessive water flow.
  7. Miss X wrote to the Council again in March 2018 and asked it to deal with her complaint at stage 2. Miss X said she had not received a further response from the Council in relation to her concerns about the 2006 housing development. She said it had not adequately responded to her concerns about ongoing riparian responsibilities.
  8. The Council wrote to Miss X with its stage 2 response in May 2018. It apologised for the delay but said Miss X should write to the planning department for it to address her concerns about the 2006 development. The Council said it would release a report detailing its flood management strategy and the results of its investigations following the flooding. The Council explained it had remined residents of their riparian responsibilities, and said on this occasion emergency funding from both the Council and the EA covered the costs.
  9. Miss X remained unhappy with the Council’s response to her complaint and in September 2018 she complained to the Ombudsman. She said she had not received sufficient answers or reassurance from the Council about her concerns over riparian rights and her questions and past and present planning approvals for new housing developments.

My findings

  1. Miss X complained about the Council’s inadequate response to her concerns about flooding and ongoing responsibilities for the culvert which runs under her property. Following my enquiry letter the Council provided a response to Miss X’s outstanding concerns.

The Council’s response to the collapsed culvert

  1. Neither Miss X or the Council knew about the route of the culvert until it collapsed in 2017. Although Miss X was unaware of the culvert, as the landowner she was partly responsible for the upkeep, maintenance and the repair of it when it collapsed. The Council as LLFA obtained funding and in partnership with the EA replaced the culvert and put measures in place to reduce the chance of future flooding. The Council’s response to the collapsed culvert was appropriate.

Riparian responsibilities

  1. The law says that as the landowner Miss X has an ongoing responsibility to maintain the part of the culvert which runs under her land. The evidence shows there are eight other properties who also have riparian responsibilities for the culvert. One of those properties also has a manhole access point in the garden.
  2. The ongoing responsibility to maintain the culvert to help prevent flooding lies with Miss X and the other eight landowners. The Council has provided a key to each of the landowners with riparian responsibilities to enable them to access gates to the culvert when the need for maintenance and repairs arise. It is not the Council’s responsibility to arrange or give advice around the maintenance of the culvert.
  3. The land that includes the open brook which runs into the culvert is currently owned by two housing development companies. Until the land is built on, these two companies both have riparian responsibilities for the open brook.

The 2006 housing development

  1. Miss X in her complaint asked the Council whether the developer replaced the culvert as part of the planning condition of approval for the development in 2006.
  2. When the developer commenced work to replace and divert the culvert in 2007, an excavation survey identified that the culvert passed through land next to the development site. This was beyond the ownership or control of the development, and the developer did not have the right or authority to alter the flow of water on land it did not own.
  3. The EA approved revised plans and the Council discharged the condition, therefore no work took place on the culvert. Laws at the time meant the Council was not required to notify the public about applications to change or discharge planning conditions. Therefore, the Council did not need to publish these changes on its website.

The new housing development upstream

  1. The evidence shows there is a buffer zone between the open brook which leads to the culvert, and the new housing development. Therefore, none of the new residents would have any riparian responsibilities for the culvert or the open brook. There is however a flood water management strategy in place to deal with any adverse effects the new development may have on flooding in the area.
  2. At the time of writing, the Council has asked specialist drainage engineers to consider designs which the developer has submitted. I am satisfied the Council has considered flood and water management from the new development, and it is adequately monitoring the developer’s plans to ensure they are compliant.

The Council’s handling of Miss X’s complaint

  1. The Council could have been clearer in some of its responses around riparian rights and ongoing responsibilities at stage 1. Although it does not amount to fault, it could have explained that other landowners have the same ongoing responsibilities and it could have explained the flood management strategy for the new housing development in more detail. It has now done so in response to my enquiries.
  2. However, the Council said at stage 1 it would provide an answer to Miss X’s concern about the 2006 housing development by the end of January 2018. When the Council did write to Miss X at stage 2 in May 2018, it told her to write to the planning department separately. That was fault, and caused Miss X avoidable frustration, uncertainty and the time and trouble in asking the Ombudsman to investigate her complaint. We expect councils to respond to complaints comprehensively and by involving all relevant departments. The Council should have fully answered Miss X’s concern within the complaints procedure.
  3. Miss X asked the Council to progress her complaint to stage 2 in March 2018. It did not formally reply to her until the end of May 2018. That is fault, and the delay caused Miss X frustration and time and trouble asking the Council to provide a response.

Agreed action

  1. The Council agreed within one month of the final decision to:
    • Apologise to Miss X and pay her £150 for the delay in handling her complaint, and for failing to fully respond to all her concerns.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice, and the Council agreed to remedy that injustice

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Investigator's decision on behalf of the Ombudsman

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