The Ombudsman's final decision:
Summary: Mr X complained the Council failed to take action concerning the flood risk caused by his neighbour altering watercourses. There is no fault in the way the Council reached the decision not to take enforcement action against Mr X’s neighbour.
- Mr Y complains on behalf of Mr X, the Council has failed to take action under the Land Drainage Act concerning the flood risk to Mr X’s property caused by Mr X’s neighbour filling in and diverting watercourses and removing ponds on nearby land.
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 have considered the information supplied by Mr Y on behalf of Mr X and have spoken to Mr Y on the telephone. I have considered the Council’s response to my enquiries.
- I gave Mr Y and the Council the opportunity to comment on a draft of this decision.
What I found
- An ordinary watercourse is a watercourse that is not part of a main river. It includes rivers, streams, ditches, drains and culverts (but not public sewers) through which water flows.
- The Flood and Water Management Act 2010 transferred some regulatory powers on ordinary watercourses from the Environment Agency to Lead Local Flood Authorities (LLFA) with effect from April 2012. Dorset County Council (the Council) is a LLFA. The purpose of ordinary watercourse regulation is to control certain activities that might have an adverse flooding impact.
- Three properties share a septic tank: Mr X’s property and his two neighbours at property A and property B. The septic tank is located at property A.
- In spring 2017 the owner of property A installed a new sewage treatment plant for the sole use of their property. Mr X and the owner of property B decided to install their own separate sewage treatment systems.
- Mr X received planning permission and building regulations approval from the Council and an environmental permit from the Environment Agency. Towards the end of 2017 Mr X installed his own sewage treatment plant at his property. This discharged into a ditch which entered a piped culvert which crossed property A.
- In October 2017, the inlet pipe to the piped culvert was altered, causing the ditch to flood. This submerged the outlet from Mr X’s sewage treatment plant so it was inoperable. In December 2017, the owner of property A blocked the piped culvert where it entered his property. This caused the ditch to flood again.
- An officer from the Council met with Mr X and Mr Y at the properties in December 2017. Following the meeting, in January 2018, the Council wrote to the owner of property A requesting that they unblock the pipe. The owner of property A did not respond. Mr Y complained to the Council on behalf of Mr X in January 2018. The Council responded on 5 March 2018. It advised Mr Y that it had considered its discretionary powers but did not intend taking enforcement action against the owner of property A.
- Mr X took successful court proceedings against the owner of property A. The court stated the owner of property A must unblock the pipe and must not obstruct it. However, Mr Y says the property is still at risk of flooding due to alterations the owner of property A has made to the land drainage arrangements and due to the inadequacy of the pipe. Mr X used a private company to carry out a drainage survey of the pipe. He says the company could not get any further than 5 metres along the pipe as it was blocked so the potential for flooding remains.
- The Council says the owner of property A advised they installed the pipework as a land drain to reduce surface water flooding on their land. It is a perforated pipe and the owner of property A has concerns about treated effluent running through a perforated pipe and infiltrating their land. Also, the owner of property A had concerns the watercourse did not have a base flow through the year so there would be periods when the treated effluent was not diluted.
- The Council has considered the views of the owner of property A. It has considered the information supplied by Mr X and Mr Y including information from the previous owner which Mr Y supplied. It has reviewed historical maps for evidence of a watercourse. It has also carried out site visits. It is unable to find conclusive evidence the owner of property A or his predecessor deliberately infilled a watercourse.
- The Council has powers to serve a notice for the removal of an obstruction to a watercourse but these powers are discretionary. The Council has to weigh up the evidence and the chance of any successful prosecution with the potential costs of taking legal action. It has decided that it is not appropriate to take enforcement proceedings against the owner of property A. The Council has considered the evidence available. As there is no fault in the way the Council reached that decision I cannot question its decision not to take enforcement action. The Council is not at fault.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman