The Ombudsman's final decision:
Summary: Mr B complains that the Council has failed to deal with a defective sewer serving his property. There is no fault by the Council. It has explored all options to decide how to resolve the problem and addressed Mr B’s concerns. It cannot start the work until the landowners, including Mr B, complete the legal deeds.
- Mr B complains the Council:
- has taken too long to deal with a defective sewer at his property;
- is wrong to install a shared sewerage system with him and one other neighbour;
- could have fixed the existing system at less cost to him; and
- has provided no date for when the work will be completed.
What I have investigated
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- I have investigated the Council’s actions from February 2017 to June 2018.
The Ombudsman’s role and powers
- 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)
- 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 have considered the information submitted by Mr B and discussed the complaint with him. I have considered the Council’s response to my enquiries and its file documents. Both parties have had the opportunity to comment on a draft of this statement.
What I found
- The law says that if it appears that satisfactory drainage has not been provided or the sewerage system is defective, the Council can serve a notice requiring the owner or owners to make satisfactory provision and to do such work as is necessary. If the owner does not take the required action, the Council can prosecute or do the work and recover the costs from the owner. (Building Act 1984)
- Mr B shares a communal sewerage system with three neighbouring properties. The land is a scheduled ancient monument. The sewage system was overflowing and in 2012, the Council found that the system was defective. It served a notice on the householders to empty the digester tank on a regular basis to prevent further overflows until a long-term solution could be found.
- Two of the householders installed a new sewage treatment plant serving their properties. Mr B and the remaining neighbour could not agree how to resolve the defective system. In 2013, one of Mr B’s neighbours got a court order preventing Mr B from draining across his neighbour’s land (this is the site of the existing system), and so Mr B applied for planning permission to install his own system. The Council refused to grant Mr B permission because Historic England would not allow a solo system as it would disturb historic remains.
- Later in 2013, the Council served Building Act notices on Mr B and his neighbour requiring them to install satisfactory drainage and sewage disposal. The notice was not complied with and so the Council decided to do the work itself and charge the householders for this. The Council’s other option would have been to prosecute the householders for failing to comply with the Building Act notice.
- In early 2014, the Council put various engineering options to Mr B and his neighbour and consulted with Historic England, as well as its own planning and conservation teams.
- The Council obtained Scheduled Monument consent in July 2014 but could not meet all the conditions such as an archaeological survey until March 2015. The Council then sought planning permission to install the new sewerage system. This was granted in 2016.
- The Council proposed that it install a new sewage system on Mr B’s land. The power supply for the plant will come from Mr B’s house. Mr B and his neighbour need to enter into a deed to govern the operation of the plant and how the cost of running it will be met between them. Both Mr B and his neighbour would need to enter into a deed of easement with the owner of the farmland the system will drain through.
- The Council asked Mr B and his neighbours to complete the necessary legal deeds before it could go ahead. Mr B had not instructed a solicitor and so the Council did this on his behalf. In December 2016, the solicitor acting for one of the landowners asked the Council for more accurate plans as those the Council had supplied to be included in the Deed of Easement did not reflect the position on the ground. The solicitor also pointed out that Mr B and his neighbour would be draining through not just the farmland but another parcel of land and so another landowner would need to enter into a deed of easement before work could be started.
- Throughout 2017, Mr B contacted the Council asking it for updates. The Council responded to Mr B but the files say that he had not completed his legal deeds as requested.
- Mr B complained to the Council in October 2017 about the delay in completing the works, that the Council should have repaid the existing system, and that it should not install the tank on his land.
- The Council’s position is:
- It was for Mr B and his neighbours to ensure there is an adequate waste disposal system. The Council is involved because the neighbours were unable to agree.
- The Council could have prosecuted them for not complying with the notice it served in 2013, but decided that it would do the work in default. It has tried to facilitate discussion between the neighbours but ultimately it is not responsible for this.
- It could not repair the system because it was not suitable and the court had ordered that Mr B could not drain over his neighbour’s land. This also meant that the new system would need to be in a different location.
- It employed a specialist contractor who identified the most appropriate replacement system. Historic England would only allow a joint system on the land serving Mr B and his neighbour, so as to minimise disturbance to the ground and because it will not allow excavation below a certain distance.
- It has consulted in detail with Mr B and made sure he has an adequate system while a long-term solution is sought. It proposed siting the tank on his land because the archaeological surveys said this would cause the least ground disturbance of historic remains. Mr B asked the Council to agree a different location on his land (the site of the original tank). After further consultation with the archaeologists and Historic England, the Council agreed this new location. The new location was agreed because Mr B had already landscaped this part of his garden and so had already disturbed the ground.
- Mr B and his neighbour are responsible for the upkeep of the system and the running costs. Mr B has since moved out and so the property is largely empty but he is still liable to meet half the costs
- The process is taking longer than expected due to the special designation of the land, that it has to consult with Historic England; get planning permission; and arrange specialist work such as archaeological visits. It also consulted with Mr B and the neighbours, when it need not have done.
- The Council has employed legal representation to act in the interests of all the neighbours and to draw up a legal agreement regarding access and maintenance. There has been protracted legal correspondence. The Council kept an overview of the legal correspondence but acknowledges that it did not always respond to this.
- It must have Deeds of Easement in place before it can do the work, but Mr B has not returned those he is required to enter into. It advised Mr B to take legal advice about this. Only then will the Council be able to say when it will complete the work. If the deeds are not forthcoming, the Council will seek a court order allowing it to force access to the land.
- The Council appointed a solicitor on Mr B’s behalf and he must engage with him. If he does not, this may add to the delays. The Council engaged the solicitor on a fixed fee basis with specific instructions. Mr B will have to meet the cost of any work he instructs the solicitor to do over and above that.
- The Council is not able to give the exact costs but as of December 2015, it estimated these to be £13720. The Council cannot give a timescale for when the works will be started or completed until the legal deeds are in place.
Was there fault by the Council causing an injustice Mr B?
- Clearly, it is for Mr B and his neighbours to ensure there is satisfactory sewerage provision serving his property. However, having told them that it would do work in default, I would expect the Council to proceed with this and keep them informed of its actions.
- It is open to the Council to do the works in default and it can decide how it does so. We would expect it to have regard to all the factors in deciding how to deal with the defective sewerage system. The Council decided that it could not repair the existing system. It made this decision prior to February 2017 and so it is not part of my investigation.
- The Council properly considered where the new system should be located. The Council had to take account of advice from the archaeology surveys and advice of Historic England. It also properly took into account the court order preventing Mr B from draining through his neighbour’s land. The Council also changed the location of the plant to another part of Mr B’s garden at his request, having first consulted the archaeologists. There is no clear fault in how the Council decided how it would replace the defective sewerage system.
- It is taking longer than all parties anticipated to start the works and so I have looked at whether the Council has delayed unnecessarily. The Council has acknowledged that its legal department did not always respond in good time to contact from the various solicitors representing the parties. However, I do note that the Council’s Environmental Health Team responded to Mr B’s contact. It addressed his enquiries about why it could not repair the existing system; why the new plant would be on his land; the detail of emptying of the existing tank pending installation of the new plant; and the why he should pay half the costs of running the new plant.
- But any shortcomings in the Council’s communication is unlikely to have caused additional delay. The Council has been unable to instruct a contractor start work because the legal deeds are not in place that would allow the pipework to be laid on the land belonging to two parties who will not benefit from the sewerage system. Notably, Mr B has not completed the legal work needed to allow the Council to install the system. Mr B and the other landowners may have good reason for not agreeing the deeds, but this is not due to fault by the Council. It has answered Mr B’s questions about the existing and new system. In this case, it is the landowners, including Mr B, not completing the legal deeds that has delayed the work.
- I realise that it is not ideal for Mr B to agree to work on his land without knowing the costs or how long it will take. But the Council cannot give a timescale or an indication of costs until the legal deeds are completed and a contractor appointed. Again, if Mr B is concerned about the time taken or the potential costs, he could install the new system himself and in agreement with his neighbour.
- I have completed my investigation. There was no fault by the Council.
Parts of the complaint that I did not investigate
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
- For this reason, I have not investigated the Council’s actions prior to February 2017.
Investigator's decision on behalf of the Ombudsman