The Ombudsman's final decision:
Summary: Mrs X complains there was fault in the way the Axe Brue Internal Drainage Board carried out maintenance of a watercourse that resulted in the death of three cows. There was no fault in the drainage board’s actions.
- Mrs X complains that the Axe Brue Internal Drainage Board failed to follow appropriate processes and procedures when it carried out maintenance on a watercourse passing through her land. She complains the roots of Hemlock Water Dropwort were left on her land and this caused the death of three cows.
The Ombudsman’s role and powers
- 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 a council’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)
- 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)
How I considered this complaint
- I spoke to Mrs X and considered the information she provided. I made enquiries of the Drainage Board and considered its response to the complaint. I sent a draft decision to Mrs X and to the Council to enable both parties to comment. I considered the comments I received.
What I found
- Section 14 of the Land Drainage Act 1991 allows a drainage board to enter land to carry out maintenance work on watercourses.
- Section 64(3) of the Act states (other than in an emergency) drainage boards may not access land ‘as of right’ unless notice has been given to the occupier. It states if the demand is for the admission of heavy machinery, at least 7 days’ notice is required.
- Section 71 of the Act concerns the service of notices. It states a notice served under this act shall be in writing.
- Section 15(1b) of the Act states a drainage board may deposit any matter so removed on the banks of such a watercourse, or on such width of land adjoining such a watercourse as is sufficient to enable the matter to be removed and deposited by mechanical means in one operation, provided the deposit would not constitute a statutory nuisance.
- Section 15(4) states where injury is sustained by any person by the drainage board depositing spoil, the drainage board, may, if it thinks fit, pay compensation that it deems appropriate. But, if the injury could have been avoided if that power had been exercised with reasonable care, the board is obliged to make full compensation.
The Environmental Protection Act 1990 (EPA 1990)
- Section 79 of the Act specifies what is considered a statutory nuisance. These include “any accumulation or deposit which is prejudicial to health or a nuisance” or any “other matter declared by any enactment to be a statutory nuisance”.
The drainage board specifications for drainage work
- Under Quality and Defects, the drainage board’s contract for the clearance work states “Where alien invasive weeds (non-native plans) are found these are to be reported to the Area Manager. These plants are not to be removed from the channel without prior approval, as it is prudent to deal with them whilst they are still growing – probably by use of herbicide…”
- Mr and Mrs X lease their land from the land owner (known as a ratepayer to the drainage board). In April 2017, the drainage board wrote to ratepayers stating it intended to access land to carry out watercourse maintenance work. The board told me it generally carried out the work on an annual basis.
- On 6 May, the drainage board also placed an advertisement in a local newspaper giving notice of the works it would be carrying out. The advertisement stated the full schedule of works could be found at their website. It stated it needed a nine metre maintenance strip from the top of the bank of waterways for access.
- The drainage board had no contact with Mr and Mrs X directly. However, Mr X knew the contractor the drainage board used. He had done the work for the drainage board in previous years. Mr X contacted him to ask if he could widen a specific area of the watercourse slightly where his cattle access it to drink. The contractor agreed.
- I understand the maintenance work adjacent Mr and Mrs X’s field took place on 24 July.
- On 21 August Mr and Mrs X found that three of their cattle had died. The cause of death was established by post mortem. They died from eating the roots of Water Dropwort Hemlock which was poisonous. They noted the dredgings from the maintenance work had been deposited on the bank of the watercourse beyond a temporary electric fence they had in place. The contractor told the board the electric fence was not in place at the time the works were carried out.
- The dredgings contained the roots of Water Dropwort Hemlock which are the most poisonous part of the plant.
- Mr and Mrs X discussed the situation with an officer from the drainage board that evening. They stated they may wish to claim against the drainage board. As part of the conversation they say the officer told them the drainage board’s policy was to notify the ratepayer when this plant was identified during dredging so that the rate payer can take proper precautions. The officer concerned stated no such conversation took place.
- Mr and Mrs X found the board had not told the ratepayer in this instance and the contractor told them he could not identify the plant, so they felt the drainage board had failed to take appropriate precautions or appropriately train their contractors to prevent cattle eating the roots of Water Dropwort Hemlock.
- Mr and Mrs X made a claim against the drainage board which it passed to its insurers. They acknowledged the contractor’s machinery may have uprooted some of the plants, but they stated the contractor would have no means of knowing that Water Dropwort Hemlock was present in the vegetation removed from the banks of the watercourse. They stated the drainage board was acting within its statutory powers when it deposited the spoil on the banks of the watercourse.
- The insurer stated the board had not introduced the plant or contributed to spreading it. It stated the board had simply removed the plant from the banks of the watercourse when carrying out its statutory maintenance duties. It noted the local authority had not been involved. There was no evidence the spoil would be deemed a statutory nuisance under the Environmental Protection Act.
- In its initial correspondence the insurer mistakenly stated Mr X had been present when the work was carried out. Mrs X clarified this was not the case.
- Mrs X accepted the board had not spread the plant, but she argued the work exposed the toxic roots. Mrs X argued the drainage board had failed to sufficiently notify the landowner that the works were to take place which prevented them taking action to avoid any danger to livestock. She felt the notice on the board’s website was inadequate. She also felt the contractor had failed to follow procedures because they were expected to notify the office if they saw Water Dropwort Hemlock so that landowners could be notified.
- The insurer stated the appropriate notification had been given to the land owner. It stated the plant had grown to its full potential and would be blossoming, so it considered the works were irrelevant as the plant was already present on Mrs X’s land. The insurer stated roots were not only exposed by the works, they could also be exposed by the running water in the watercourse.
- The insurer rejected the claim. They felt the landowner may be responsible as they permitted the plant to grow and exposed the livestock to danger. Mrs X brought her complaint to the Ombudsman as a result.
- Mrs X told me they check their livestock every day, so the cattle had been dead for less than 24 hours when they were discovered in August. She explained they place an electric fence along the watercourse which prevents access for cattle, other than in one place, for the cows to drink. For this reason, they cannot generally access the vegetation on the bank. When the work was carried out to the watercourse, Mrs X says the dredgings were placed on the other side of her fence, where the cattle could access them. She acknowledged the fence was likely to have been less than nine metres back form the watercourse. The board stated the fence was not in place at the time of the works.
- Although the board placed a notice online, Mrs X considered this was insufficient because it was not known specifically when the works would be completed, so they could not know in advance when the work would be done and when spoil would be placed on their field.
- The Land Drainage Act specifies that the board must provide at least seven days’ notice to the occupier of land before entering with heavy machinery. The Act specifies that the notice must be in writing. The board wrote to the owner of the land who pays the rates in this instance. The board expects the ratepayer to notify the leasee if the land is leased. The letter to the ratepayer meets the requirements for notification under the Act.
- The maintenance work is carried out annually and I note that Mr X contacted the contractor to ask him to widen part of the watercourse where his cattle access water, so it seems evident Mr and Mrs X were aware the works would be taking place. I recognise that Mr and Mrs X were not aware precisely when the work would happen. However, the Act does not specify that the drainage board should confirm precisely when the work would be done.
- I found no fault with notification of the works.
- What happened on the day the works were carried out is disputed. Mrs X says the spoil was deposited within Mr and Mrs X’s temporary electric fence. However, the drainage board’s contractor stated the fence was not in place at the time of the works. In any event, because the fence was temporary, it’s position was not fixed and it could be moved. Based on the information Mrs X provided, it seems more likely than not that the fence, if erected at the time of the works, was within nine metres of the watercourse. The drainage board require a nine metre strip of land to be kept free to allow the spoil to be deposited.
- The Land Drainage Act allows the drainage board to place the material removed from the watercourse onto the bank by mechanical means in one operation. So, even if the spoil was placed inside the fence, the drainage board’s contractor was entitled to place the spoil where he did.
- I have gone on to consider Mr and Mrs X’s concerns about the contractor not having alerted the drainage board about the presence of Water Dropwort Hemlock. Mr and Mrs X say that an officer of the drainage board told them its practice was for the contractor to alert them, so the land owner would be alerted to it. I found no evidence of this policy as such. However, the conditions of the drainage board’s contract for the work states that where an ‘alien’ or non-native invasive weed is identified, this should be reported. It should not be cleared as part of the work. This is because such weeds should be treated while they are growing to avoid them spreading. It is possible that this condition was referred to by the drainage board officer. Water Dropwort Hemlock is a native plant rather than the type of alien species this contractual term attempts to control. So, I have not found the board failed to follow its policy in this respect.
- There is no dispute that the roots of Water Dropwort Hemlock are more poisonous than the foliage of the plant. Mrs X noted that the Land Drainage Act only allows internal drainage board to deposit spoil on the bank of watercourses provided they do not constitute a statutory nuisance. The EPA 1990 concerns nuisances that prejudice human health rather than the impact to animals. No local authority has declared that the spoil was a statutory nuisance.
- I understand that the loss of cattle was upsetting and affected Mr and Mrs X financially. However, I have considered the law, the drainage board’s policies and the circumstances of the compliant and I do not consider there was fault by the drainage board. As a result, I have no grounds to recommend a remedy.
- There was no fault by the internal drainage board. I have now completed my investigation and closed my file.
Investigator's decision on behalf of the Ombudsman