Liverpool City Council (17 016 326)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 07 Nov 2018

The Ombudsman's final decision:

Summary: The complainant says the Council took too long to act when his neighbour caused damage to a drain on his property causing vermin and odours to emerge. The Council says it followed appropriate guidance when deciding if it should prosecute the neighbour when he failed to complete works within the notice period. The Ombudsman finds the Council raised the complainant’s hope of swifter legal action but acted without fault in following guidance.

The complaint

  1. The complaint is that when responding to complaints about a faulty drain affecting the complainant’s property the Council failed to:
    • Act without delay in investigating complaints that a neighbour had caused a public health issue from undertaking work on a sewer or drain;
    • Act without delay to resolve odour and rat problems arising from the faulty work or setting a time target for issuing legal proceedings to remedy the problem.
  2. The complainant, I shall refer to as Mr X, says this led to him having to live with sewage odours and rats for far longer than he should have.

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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 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. In considering this complaint I have:
    • Contacted Mr X and considered the information put forward with his complaint;
    • Put enquiries to the Council and considered its response;
    • Researched the relevant law, guidance and policy;
    • Shared with Mr X and the Council my draft decision and reflected on comments received.

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What I found

  1. The Council has a duty to investigate and where appropriate enforce public health legislation. It draws its powers and duties from provisions contained in:
    • Public Health Acts 1936 and 1961;
    • Prevention of Damage by Pests Act 1949;
    • Local Government (Miscellaneous Provisions) Act 1976;
    • Building Act 1984;
    • Housing Acts 1985 and 1996;
    • Housing Act 2004 and Regulations issued under the Act;
    • Housing and Planning Act 2016.

Enforcement

  1. Where the Council is satisfied work is needed to repair drainage it may issue a Notice under Section 59 of the Building Act 1984. The notice imposes a duty on a private land owner to carry out the necessary repairs. Councils also have powers under the Housing Act 2004 to undertake the works at the owners’ expense where they believe the owners may not carry out the works. However, this is a discretionary power. The law does not impose a duty on the Council to carry out works in default, only to consider if the power may be appropriate.
  2. Under the Council’s enforcement policy, it reserves the right not to carry out work in default where it believes the costs of the works are likely to be very high or there are likely to be difficulties in recovering the costs.
  3. The Council’s enforcement policy says it will use the Crown Prosecution Service Code for Crown Prosecutors when deciding whether to prosecute in court. Under that Code officers must satisfy themselves:
    • there is enough evidence to secure a conviction;
    • there is a realistic chance of a successful prosecution and
    • a prosecution would be in the public interest.
  4. The general enforcement policy of November 2017 adopts the principles of good enforcement set out in:
    • The Police and Criminal Evidence Act 1984 and Code of Practice;
    • Criminal Procedures and Investigations Act 1985;
    • Human Rights Act 1998;
    • Enforcement Guidance issued under Section 9 of Housing Act 2004;
    • Regulators Code of Compliance 2014;
    • The Enforcement Concordat;
    • The Code for Crown Prosecutors.
  5. Enforcement powers are discretionary. The Council says it will take a fair and proportionate view on enforcement ensuring it is used where it is proportionate, to the harm caused.
  6. A new enforcement policy for the private housing sections adopted in January 2018 gives a clear route for enforcement using the example of using proceedings where a private owner has affected a drain.
  7. The Council also has discretionary powers to issue enforcement notices against anyone who contravenes planning controls. Government guidance says such powers should be used proportionately and where it is expedient to do so.

What happened

  1. Mr X says his neighbours, whom I shall call Mr and Mrs Y, carried out work at their property resulting in new drain connections on his land. They did so without his permission and the work affected the drains and sewers serving both Mr X’s home and his neighbour’s home. Mr X believes the drains were put in during an unauthorised extension to his neighbour’s property which was later given retrospective planning permission. The issues relating to that planning permission occurred beyond the time limit placed by the law on the Ombudsman’s power to investigate. The grant of retrospective planning permission is therefore outside the scope of this investigation.
  2. Following an inspection of the sewer connection the utility company confirmed to Mr X that Mr and Mrs Y had installed a private drain but had failed to fit a sump unit. This meant the drain did not have a trap to prevent foul odours emitting from the drain or vermin escaping into the gardens. Mr X complained to the Council about the works and says it took too long to act. He says he therefore experienced avoidable odour nuisance and rat infestations. In addition, Mr X had to accept work on his land affecting the use of his home and garden.
  3. The Council’s records show the utility company contacted the Council in August 2017 on Mr X’s behalf. The utility company said Mr X had experienced strong odour emitting from the defective drain. A Council environmental health officer (the case officer) undertook a site visit and met Mr X and the utility company representative. The case officer took photographs and liaised with the utility company which confirmed the sewer and inspection area fell within its responsibility. Therefore, any work may need the utility company’s approval. Although the case officer asked for evidence of rat infestation the Council says at first it did not receive any. The case officer says he could not identify any evidence of rat infestation on his site visits. The Council says it liaised with Mr X encouraging him to send in any evidence of vermin coming from the drain. The Council says without the case officer witnessing or having evidence of rat infestation the Council could not start formal proceedings. In commenting on my draft decision Mr X says he provided video evidence of a rat in his garden on 7 and 22 September 2018 (copies of which I have seen) as well as still photographs. The Council says it received these and took action.
  4. In October 2017, the Council received photographs of a rat in Mr X’s garden. The Building Control officer had received the photographs and passed them to the Council’s environmental health officer. This evidence led the Council to issue a Building Act Notice on Mr and Mrs Y on 24 October 2017. The notice set a time target for Mr and Mrs Y to begin repairs to the drain within 28 days of the notice.
  5. The Council says that Mr and Mrs Y responded to the Notice confirming they would carry out the works. However, the work could not take place immediately. Mr and Mrs Y said they needed the utility company to approve the contractor they should use. They said the utility company also wanted drawings of any proposed work for approval before the works could start.
  6. During the period from October 2017 to July 2018 the case officer liaised with Mr and Mrs Y and the utility company at least twenty-five times. The Council says the case officer had to give priority to work on the cladding on high-rise buildings in its district therefore it gave Mr X’s case less priority. The Council says the complexity of the work also meant it took time to resolve how best to complete the repairs.
  7. The utility company issued an Approval Notice on 1 May 2018 giving Mr and Mrs Y permission to connect to the public sewers and appoint contractors to carry out the work. The Notice tells Mr and Mrs Y their contractor must apply for permission to work on the public sewer before starting work. The Approval Notice directs how the applicant should connect to the sewer. It directed that access to the drains must be though the manhole in Mr X’s garden. The Approval Notice says the Notice does not give permission for the contractors to access third party land. It reminds applicants they must get the relevant land owner’s permission. Therefore, Mr and Mrs Y needed to gain Mr X’s agreement to access his land before work took place.
  8. Mr and Mrs Y appointed a contractor approved by the utility company and the works were scheduled to start on 29 May 2018, with an environmental health officer visiting to inspect the area on 6 June 2018. Although Mr X received a card on 4 June 2018 saying the utility company had completed the works it did not do so until 11 July 2018. When he asked the utility company’s officer on 11 July 2018 about the card he received the officer contacted the company but nobody could account for it.
  9. In response to my enquiries the Council says it set a 28-day time limit for compliance with the Building Act Notice. So, the Notice said Mr and Mrs Y should complete the work within 28 days of 24 October 2017. However, the Council recognised that Mr and Mrs Y intended to comply with the notice, needed time to appoint an approved contractor, have their application for approval to carry out the works considered and permission given, and to set a start date. The Council also recognised Mr and Mrs Y needed to gain permission from Mr X for entry onto his land. Therefore, the Council decided not to set further time targets after the 28 days expired but to liaise with all the parties to ensure plans for the work progressed. In the Council’s view, the complex nature of the work meant plans would take time as would the necessary approval. The Council decided issuing proceedings for failure to comply with the Building Act Notice would not be in the public interest given Mr and Mrs Y intended to complete the work and the action they were taking to gain permission to do so.
  10. Mr X believes the Council failed to act quickly enough. It took until July 2018 to correct the fault in the drain complained of in August 2017 and identified in October 2017. Mr X believes therefore the Council put him at avoidable risk of odour and rat infestations for an unreasonably long time. Having set a deadline of 28 days he says it failed to follow this up and raised his expectations of earlier resolution.
  11. The Council says its new enforcement policy aimed at helping officers dealing with private housing issues is unlikely to have resulted in a quicker result. The Council says that policy is clearer about issuing notices early on and taking prosecutions. However, the Council says the complexity of the work, the need for permission and preparation of plans would mean using the tests for prosecution it is unlikely it would have started proceedings.
  12. In the Council’s view if it had decided to issue proceedings those too would have taken time as they progressed through the courts procedures. If the court felt the Council had been unreasonably hasty in issuing proceedings it may face an award for costs. Therefore, it believes it acted properly in deciding not to issue proceedings.
  13. Mr X says the Council allowed his neighbour to trespass on his property and make an unauthorised connection to the public sewer. While happy the repairs are now complete Mr X says the Council took too long in ensuring the utility company carried out the repairs and he now has extra pipework on his property which benefits only his neighbour. Mr X believes it should compensate him for the inconvenience and delay.

Analysis – was there fault leading to injustice?

  1. Following the reports of a problem it took the Council from August 2017 to October 2017 to issue a Building Act Notice. The case officer liaised with Mr X and once he received photographs of a rat in the garden he issued the Building Act Notice. Without earlier evidence on which it could base the notice i.e. evidence that might be acceptable in a court of law to show rat infestation the Council could not reasonably have issued this notice earlier.
  2. Although the Council imposed a 28-day compliance period on the Building Act Notice served in October 2017 it took longer for compliance. The time set is a standard time line but it was open to the Council to give longer. The Council issued the Notice to encourage Mr and Mrs Y to comply and complete the works. Setting a short time target might help in persuading them to act quickly. However, 28 days is a very short time for them to gain approval of a contractor and the planned work from the utility company. It is highly unlikely Mr and Mrs Y could comply with that tight timeline. Therefore, the Council may have raised Mr X’s expectations unreasonably given it knew what Mr and Mrs Y would need to do before work could begin. It should have set out for Mr X the likelihood of it taking longer. It should have set out for Mr X the steps Mr and Mrs Y needed to follow before the work could begin. I find the Council at fault for not explaining the short time target, raising Mr X’s expectations and failing to manage those expectations.
  3. In deciding whether it should use enforcement powers to follow up the Building Act Notice, the Council considered the likelihood of a successful prosecution. The people on whom it served the Building Act Notice showed a willingness to comply. The objective of the Building Act Notice i.e. having the works completed could not be carried out without Mr and Mrs Y first:
    • Appointing a contractor approved by the utility company;
    • Commissioning plans for the work for approval by the utility company;
    • Gaining approval for the plans by the utility company;
    • Gaining an approval notice;
    • Gaining Mr X’s permission to enter his land to carry out the work.
  4. The Council says it recognised these steps made it difficult for Mr and Mrs Y to comply with the 28-day limit set in the Notice. It says considering the guidance in the Codes it decided it would not be in the public interest to prosecute Mr and Mrs Y unless they failed to move toward completing the work. The Council says its officers reviewed progress on the appointment of a contractor, approval of the contractor by the utility company, and the application for formal approval. Its officers exercised professional judgement on when and whether it should start court proceedings. I find it acted without fault in considering the guidance and deciding not to prosecute.
  5. Other duties meant the case officer could not liaise as often with Mr X as he intended. It also meant he could not review progress as often as intended. Considering the weather conditions in the winter and spring of 2018 Mr and Mrs Y may have had difficulty in completing the works. However, given the 28-day time period set in the Notice the Council should have reviewed progress every 28 days. Then periodically reviewed if prosecution was needed. The Council should then have told Mr X about the progress and how much longer it may wait before reconsidering if prosecution should be started. I find the Council at fault for not undertaking those reviews and updating Mr X.
  6. In finding fault I must also consider what impact this had in terms of an injustice to Mr X.
  7. Following the service of the Building Act notice Mr X reported further rat infestations which the pest control team responded to by baiting the area. The impact on Mr X therefore has been:
    • Further odour and rat infestations until completion of the works and liaising with environmental health officers and pest control to deal with them;
    • The uncertainty about when the work would begin and finish;
    • Not knowing the timescale which meant he could not plan for the likely disturbance while work took place;
    • The raised hope of an early resolution.
  8. The work had to be done, and I cannot hold the Council responsible for the disruption that would cause. Part of any remedy for the impact outlined above would be ensuring the completion of the work. That has been achieved in July 2018. However, Mr X should receive a remedy for the injustice outlined above is needed.

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Recommended and agreed action

  1. To remedy the injustice arising from the fault I have identified I recommend and the Council agrees to within one month of my final decision:
    • Apologise to Mr X for the lack of active management of the enforcement action, review and fewer updates than he might have reasonably expected.
    • Pay Mr X £150 for the avoidable inconvenience and frustration caused by the faults which exceeds the inconvenience and disruption he would have faced because of the works whenever Mr and Mrs Y completed them.

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Final decision

  1. I find fault in the Council’s delay in managing compliance with the Building Act Notice resulting in avoidable inconvenience and frustration to Mr X. However, I find the Council acted without fault in deciding against prosecution in line with guidance to prosecutors.

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Investigator's decision on behalf of the Ombudsman

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