Worcester City Council (18 009 209)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 12 Dec 2019

The Ombudsman's final decision:

Summary: Mr C says the Council was at fault for its failure over 15 years to make the owner of a carpark install a drainage system. This, he says, allowed water to damage his property. The Council was at fault for using incorrect legislation to try to solve the problem. This raised Mr C’s expectations, cost him time and trouble and caused him distress. The Council has agreed to apologise and to pay him a sum in recognition of the injustice caused.

The complaint

  1. The complainant, who I have called Mr C, says the Council was at fault for:
      1. its failure to compel Mr X, the owner of a carpark which is on land adjacent to his property, to install a drainage system in that car park;
      2. a failure to enforce a change of use of garages near his house; and
      3. poor communication with him.

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What I have investigated

  1. This dispute has continued for many years. The Council first became involved in about 2005. The Ombudsman cannot usually investigate if a complainant does not come to us within a year of the event he or she is complaining about.
  2. However, if there is good reason, for example, if the fault has only recently come to light, then the Ombudsman can investigate. Therefore, in this case, I have investigated and found fault with the Council for some events going back to 2007 because that fault has only recently come to light.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after the events complained about. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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 complainant. 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)
  3. 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 read the material Mr C submitted. I spoke to Mr C. I made enquiries of the Council. I considered their response along with the relevant law and guidance.
  2. I wrote two draft decisions which I shared with the Council and Mr C. I received their comments which I considered before writing my final decision.

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What I found

What should happen

Building Act 1984

  1. S.59 of the Building Act (1984) says ‘If it appears to a local authority that in the case of a building, (a)satisfactory provision has not been, and ought to be, made for drainage….they shall by notice require the owner of the building to make satisfactory provision for the drainage of the building, or, as the case may be, require either the owner or the occupier of the building to do such work as may be necessary for renewing, repairing or cleansing the existing cesspool, sewer, drain, pipe, spout, sink or other appliance, or for filling up, removing or otherwise rendering innocuous the disused cesspool, sewer or drain.
  2. S.99 of the Act says ‘Subject to any right of appeal conferred by section 102 below, if the person required by such a notice to execute works fails to execute them within the time limited by the notice—(a) the local authority may themselves execute the works and recover from that person the expenses reasonably incurred by them in doing so, and (b) without prejudice to that power, he is liable on summary conviction to a fine not exceeding level 4 on the standard scale and to a further fine not exceeding £2 for each day on which the default continues after he is convicted.
  3. S.102 of the Act says that a person who is issued with a s.59 notice may appeal to a magistrates’ court. The definition of a building in this part of the Act is limited to edifices. It does not include structures such as carparks.

Planning

  1. Planning permissions are often granted with conditions attached. Councils have a discretion to enforce breaches of conditions.
  2. Where a builder breaches the terms or conditions of a planning permission, the local authority may take enforcement action. Whether to do so is a matter of discretion for the Council which must decide whether such action is ‘expedient’.
  3. Enforcement action must take place within time limits or development becomes immune to such action. The time limit is four years for development or changing use without permission and ten years for all other breaches.

Building regulations. Councils’ duties

  1. The Building Regulations are a code for the safe construction of buildings. Councils have a general duty to enforce the building regulations.
  2. Councils may prosecute a builder for contravening the Regulations under ss.35&35A of the Building Act 1984. Such actions must be brought within two years of completion. Alternatively, they may serve an enforcement notice on the owner requiring remedial works under s.36 of the same act. Such notices must be served within 12 months of completion.
  3. If the local authority misses these deadlines, it can apply to the high court for an injunction to prevent land from being used until remedial is completed. There is no formal time limit for applying for such an injunction but it is commonly accepted that such action is all but impossible after ten years.

What happened

Background

  1. In the 1970s, Mr X, a developer, built a block of flats on land to the rear of, and uphill from, the house that now belongs to Mr C. He obtained planning permission to build a carpark for the flat dwellers’ use. A condition required Mr X to install adequate drainage to deal with rainwater runoff. Mr C says he did not do so.
  2. In the late 1980s, Mr C bought his house and obtained a right to travel over the carpark to access his garage. As a term of this contract, Mr C agreed to pay a contribution to the upkeep of the carpark.
  3. In 1991, Mr C noticed that water was bubbling up in his garden. Initially, he tried to deal with the problem himself by building a wall but the problem persisted. At some point, Mr C installed a drain at his own expense but this, he says, was insufficient to cope with the volume of water running off the carpark.
  4. Later, Mr C realised the problem was runoff from the carpark. Mr C says he spoke to Mr X’s managing agent, Mr A, on several occasions in 1997, 1998 and 2000. He asked Mr A to remedy the problem. He did not do so.
  5. In 2005, Mr C contacted the Council. A council officer visited his house. After the visit, the officer wrote to Mr X and asked him to complete drainage works which had been specified in the grant of permission.
  6. In November 2005, Mr A wrote to the Council saying Mr X was willing to install drainage. However, he said, this had to be done after consultation with the tenants. For whatever reason, the works were not completed.
  7. In November 2007, the Council issued a s.59 Building Act 1984 notice requiring Mr X to ‘provide adequate drainage’ for the carpark. He did not do so.
  8. The Council issued a second notice in April 2008 clarifying the area concerned. Mr X lodged an appeal in the magistrates court but, at a preliminary hearing in October 2008, Mr X signed a written agreement to carry out the works if the Council agreed to withdraw the notice.
  9. Mr X wrote to the magistrates in October 2008 saying he intended to carry out the works. The Council withdrew the appeal. Mr X did not carry out the works.
  10. The Council continued to press Mr X to install drainage. Mr A told the Council in March 2009, that work would start the next week. There was a dispute between Mr C and Mr X about what Mr C’s contribution should be.
  11. The work did not start. Mr X told the Council again that work was about to begin in October 2009. Again, it did not. A Ltd told the Council it had arranged for the works to take place in 2011 and 2012. Mr A wrote to Mr C in September 2015 saying work would start soon. It did not.

Right of way

  1. There was a second element to Mr C’s dispute with Mr X and Mr A. This concerned his right of way over the carpark which, Mr C claimed, was often blocked by cars belonging to tenants and others.
  2. Conversely, Mr A and Mr X accused Mr C of being in breach of his easement by parking on, rather than traversing, the carpark. This dispute led to Mr C arguing with several of the occupants of the flats. His and his wife’s cars were vandalised. Mr C felt this was because of this dispute. The police were called on several occasions, usually, it seems, by Mr C. He blames Mr X, A Ltd and the Council.
  3. This dispute intensified in late 2017 and early 2018. Mr C claimed his access was blocked more frequently because four nearby garages were being used as workshops and their owners were keeping their cars on the carpark. Mr C complained to the Council that garage owners had changed their use and asking the Council to take enforcement action.

2017/18

  1. In late 2017, Mr C began a campaign to get drainage installed. He dealt primarily with Officer O, an environmental health officer but also with the chief executive and various other officers. He also asked councillors to intercede on his behalf. The Council says that Mr C was rude and acted unreasonably throughout.
  2. Council records show that, by now, relations between Mr C, Mr X and A Ltd were fraught. Mr C was confrontational with Council officers who he believed were biased against him. He frequently and forcefully told officers the Council should enforce the 2008 notice without delay.
  3. Council officers explained that the legal department believed it would not be possible to enforce the 2008 notice and that further investigation was necessary.
  4. In December 2017, Officer O visited the site. Having inspected, he told Mr C he would take action. There was some delay for which the Council apologised. Mr C continued to contact the Council to try to make it take action. In February 2018, Officer O said he was attempting to encourage A Ltd and Mr X to comply voluntarily. Mr C sent abrupt emails insisting on legal action.
  5. In late March 2018, Officer O issued a fresh s.59 notice requiring Mr X to engage a drainage engineer to survey the existing surface water provision and to devise a scheme of works to provide suitable and sufficient means of drainage for surface water from the area and to carry it out within 120 days.
  6. Mr C continued to write to the Council. He said to Officer O that 120 days was too long and he doubted Mr X would comply unless compelled. He demanded compensation from the Council. He complained about access. He also wrote to Mr A and Mr X demanding they comply with the notice. They did not do so.

Access

  1. At around the same time, another council officer visited the site and found that there had been no breach of planning law in the use of the garages and therefore it would take no enforcement action.
  2. Shortly thereafter, Mr X complained that the Council was biased in favour of Mr C. He said he would not comply with the order and said he had already installed drainage in 2008, which he had not. He also said he wanted to appeal the 2018 notice. He told the Council, incorrectly, that he had successfully appealed the 2008 notice and believed he would successfully appeal the 2018 one as well.
  3. Mr X spoke with Officer O in April 2018 and told him he believed the notice was invalid as the Building Act 1984 related only to buildings and not to carparks.
  4. In April 2018, a Council officer wrote to Mr C to say, ‘the matter appears to be moving towards resolution’. He also met Mr C who later accused Officer O of ‘playing games’ with him.
  5. In May 2018, Mr X wrote to Officer O saying he believed the notice should be withdrawn. He said again that it was invalid because the Building Act 1984 did not apply to carparks.
  6. Internal emails show the Council’s legal department had concerns about the validity of the notice in May 2018. Council lawyers were also concerned the notice might be unenforceable because the runoff from the carpark might not be sufficient to justify issuing a notice.
  7. Mr X met a Council litigation officer. He claimed drainage had been installed in 2008. He questioned whether there was, in fact, a drainage problem and said that, because the flats had been built before the Building Act came into force, the Act did not apply to them. He said the reason the works had not taken place in 2009 was that Mr C had refused to pay and that the 2008 notice had been withdrawn because it was invalid.

Expiry of notice period

  1. In mid-July 2018, Mr C wrote to Officer O saying the notice had only six days left to run and demanding action. He wrote to Mr X and Mr A with the same message urging them to comply. The deadline passed at the end of July. Mr X and A Ltd did not comply.
  2. Officer O had discussed the matter with legal officers who felt more evidence was required. The day before the notice period expired, Officer O wrote to Mr C asking for more evidence of flooding from the carpark. Mr C asked why more evidence was needed when the Council had had enough to issue the notice in March 2018.
  3. The emails show Mr X met Officer O and others in mid July 2018 and told them he was gathering quotes for the works ‘as a gesture of our good intent’ and did not accept he was obliged to do so because the notices were invalid and the works were the responsibility of the tenants and Mr C.
  4. Mr C continued his letter-writing campaign. Mr X replied to him in August 2018. He denied any responsibility for the carpark and threatened to revoke the easement allowing Mr C access to his garage.
  5. Mr C continued to write to Officer O, other council officers and the Council’s managing director. He received no response for over five weeks. Internal Council emails show that Officer O believed the Council should ‘sit tight and wait to monitor the rainfall and its effects on Mr C’s property. If there are problems, then we would need to establish the correct remedial steps which may be as simple as maintenance rather than a whole resurfacing of the carpark’.

September 2018

  1. In early September 2018, Mr X contacted the Council and said he had received no response to the points raised during the meeting with Officer O in August 2018. He repeated that he believed the notice was flawed in part because the carpark was not a ‘building’. He refused to speak to Officer O and said he would only speak to the Council’s solicitor and would not provide quotes for the work.
  2. In an email, the litigation officer noted that both Mr C and Mr X were pressing the Council for action. Mr C wanted the notice enforced and Mr X wanted it withdrawn. She said the Council needed further evidence and needed expert opinion on the Building Act matters raised by Mr X.
  3. Officer O felt caught between Mr C and Mr X. On 12 September, he sent an email to the head of regulatory services, Officer P, saying he was concerned about the wording of s.121 of the Building Act 1984 which suggested the carpark might not qualify as a building, ‘however [I] came to the conclusion that if water drained from the roofs of the structures (flats, garage blocks) was the cause of excess water overflowing Mr C’s drain, the notice would still work’.
  4. Officer P replied saying he believed the carpark was covered by the Building Act 1984 but they needed an expert opinion. The Council commissioned one.
  5. The same day, Officer O approached a drainage company and asked it to inspect the drainage from the rooves of the blocks of flats.
  6. Officer O emailed Mr C on 18 September 2018. He said ‘I am in the process of instructing a drainage company to undertake a full assessment of the current surface water drainage provision from the roofs of the flats and the garage of the block .Once I have their report to hand I will be able to discuss the matter with the legal team to determine the best course of action which might be one of either prosecution for non-compliance with the statutory notice or undertaking works in default to remedy the matter’.
  7. Mr C replied thanking Officer O but saying ‘you make no mention of the drainage of the carpark’. He went on to set out in detail the problems with the carpark itself. He also claimed Mr X had caused other damage to his house. He wrote to the chief executive in early October 2018.
  8. Council officers told Mr X they had arranged for a drainage company to inspect the carpark. Mr X said he would refuse permission for the company to enter his land and said he bore no responsibility as this lay with the leaseholders.
  9. Mr X complained to the Ombudsman. We refused to look at it as he had not been through the Council’s complaints procedure. He made a formal complaint about Officer O. He said there should be no inspection of the carpark while this was ongoing. The Council’s legal department said there would be no prejudice and the inspection should go ahead.
  10. The drainage company inspected the site, particularly the rooves of the flats and garages in late September 2018. The company reported in mid-October saying drainage from the rooves was adequate but that there had been a blockage in one of the drains caused by some chicken wire which it had removed.
  11. At around the same time, the Council received its barrister’s opinion on the matter. The barrister expressed ‘grave concerns’ about the notice and said that, in his opinion, it was probably ‘a nullity’ and, therefore, unenforceable, because the carpark was not a building.
  12. An email from Officer P from 18 October says, ‘it seems logical that the notice should be withdrawn and we revert to this being a civil matter between the parties in relation to the management of the surface water from the carpark’. He added, ‘in terms of managing the fall out, I suggest that any complaint from either party is responded to on the basis that this is the City’s final position, they have exhausted the complaints process and that either party may go to the Ombudsman from here should they wish’.
  13. No one from the Council wrote to Mr C until mid-November to inform him the Council would take no further action without further explanation.
  14. Shortly thereafter, Mr C complained to the Ombudsman.
  15. The acting director of governance then wrote to Mr C. In the letter’s title, she referred to ‘service water drainage’. Mr C wrote back saying that his concern had always been ‘surface water drainage’ and asking for an explanation. The acting director apologised for the error. Mr C refused to accept her apology and told her her email was ‘tosh’ and told her to ‘make something else up’.
  16. He wrote separately to Officer O and told him he had ‘perpetrated a nonsense’ and ‘should be ‘truly ashamed of yourself’. He accused him of never having intended to pursue legal action against A Ltd or Mr X and deliberately confusing ‘service drains’ and ‘surface water’.
  17. Officer O replied on 22 November 2018 denying this. He said he had carried out his duties properly but had no powers to act as the drainage engineer had found no fault. He said ‘The Building Act notice can only apply to the built environment and not land. The notice, via works in default, has been complied with…
  18. ‘Once the notice has been complied with, by virtue of works in default, it is a decision of the City Council as to whether a prosecution should be sought for non-compliance…. Given the works to comply with the notice amounted to the simple removal of a blockage it would not in my opinion be in the public’s interest for the City Council to prosecute.’
  19. ‘The drainage engineer was tasked with determining whether the surface water drainage of the buildings was adequate for normal levels of rainfall ....As the notice cannot apply to land, there was no requirement to provide an opinion on the surface water drainage capabilities of the car park itself’.
  20. On 23 November 2018, the acting director of governance consulted various Council officers including Officer O and the legal officer who had been involved in the dispute throughout 2018 and asked whether they would approve a letter branding Mr C a vexatious complainant, that is to say, the Council would no longer communicate with him.
  21. In early December, Mr C contacted a councillor who lived near him who contacted the Council on his behalf and said he believed that Mr C had been ill-treated.
  22. The councillor spoke to the chief executive on 7 December 2018. Afterwards, the chief executive wrote to the councillor saying ‘I appreciate your acknowledgement that officers have acted in good faith and have at no time tried to mislead Mr C.’

Was there fault causing injustice?

Historical fault

  1. This dispute has been going on for twenty years. During that time, A Ltd and Mr X have promised on numerous occasions to install drainage in the carpark. They have never done so. Mr C’s primary dispute is with them and the Council is not to blame for the way in which they have acted.
  2. Nonetheless, the Council has been involved in this dispute, on and off, for fifteen years. Mr C first contacted it about this matter in 2003. It issued a s.59 notice in 2007 and another in 2008 requiring drainage work to be done. Mr X agreed to carry out the work if the Council agreed to withdraw the notice. The Council withdrew the notice. It attempted to make Mr X abide by his undertaking in 2009. But it was not successful. It made various efforts to cajole him into action without success. It issued a further notice in 2018 but Mr X successfully argued that it was unenforceable. As the wording of the three notices was broadly similar, I have found the barrister’s opinion would have applied equally to the earlier notices, had the Council asked him to consider them at any time.
  3. The evidence suggests Mr X never intended to carry out the works but I do not make a finding on this point. The Council tried to make him carry out the works.
  4. Latterly, Mr X managed to convince the Council that his failure to carry out the works was Mr C’s fault. This was unfortunate as this view was unsupported by the Council’s documents but I make no finding of fault on that point.
  5. I have sympathy with Council officers, particularly Officer O, who were caught in the bitter dispute between Mr C and Mr X. Mr C complained frequently as did Mr X. Mr X and A Ltd told the Council many times they would carry out the works but repeatedly failed to do so. There is good evidence that Mr C was rude to Council officers throughout, for which there is no excuse. But this has no bearing on the merits of his complaint. Mr X also behaved unreasonably.
  6. I believe the notices of 2007 and 2008 contained the same errors as the 2018 notice and were therefore similarly faulty. As this has only recently come to light and Mr C could not have known before, this fault is not out-of-time.
  7. I find, therefore, that the Council was at fault for its issue of null notices in 2007, 2008 and 2018. If their barrister is right, and I have no reason to suppose he is not, there were errors in all three notices which were fundamental and basic. A council should not have made them.
  8. As the notices were null, they never empowered the Council to make Mr X repair the carpark. The Council once had planning and building control powers to make him do so but these powers lapsed, at the latest, ten years after the carpark was built during the 1980s. I cannot consider whether the Council was at fault for this failure as it happened too long ago. Mr X says he installed some drainage measures in the early 2000s. Mr C says he did not. I am not able to judge.
  9. Although the Council could never have enforced the notices, Mr C still suffered injustice by Council fault. He had his expectations raised for more than a decade that the Council could and would require Mr X to carry out the works.
  10. During this time, he tried repeatedly to make the Council enforce the notices. Had Mr C known the true position, he might have taken private legal action to force Mr X to do so. He may now have lost the chance due to the passage of time.
  11. The Council says, and I accept, that Mr C was rude to officers over many years. It says there is no excuse for this, which is true. However, it is also the case that, had he known the true position, in all likelihood, Mr C would not have been pursuing the Council during that period.
  12. It is also the case that, since October 2018 when it realised it had no power to act, the Council has not apologised to Mr C or explained to him the reason for its change of tack.

Mr X’s claim that notice was invalid

  1. Mr X first informed the Council that he believed the notice was null because the carpark was not a building in April 2018. The Council did nothing to investigate this until September 2018. This was fault which caused Mr C injustice in that it allowed the dispute to escalate as Officer O continued to pursue Mr X and Mr X made increasingly frenzied efforts to avoid complying with the notice.

Communication with Mr C

  1. I also find the Council at fault for its communications with Mr C. It is true that, by 2017, Mr C took little trouble to be polite to Council staff. It is also true that Mr C had no right to insist that the Council issue notices or take any other action.
  2. Nonetheless, the Council could and should have communicated with him better. Mr C says there were long periods when Officer O failed to answer his calls or emails having promised to do so. The records show there was delay which distressed Mr C. This was fault but Mr C’s behaviour towards Officer O may well have contributed to the delay by making the officer reluctant to speak to him.
  3. Mr X first claimed the 2018 notice was invalid in April 2018. The Council did not commission a barrister’s advice until September 2018 and has still not told Mr C what that advice was. While the Council had no cause to share every concern with him, it left him with the impression that enforcement was possible when it should have known it was not. This was fault and caused him injustice.
  4. Emails show that, rather than admit that notice had been ‘a nullity’, the Council told Mr C the notices had always been about drainage from the buildings and the removal of the chicken wire amounted to compliance. This too was fault. Mr C accuses the Council of a ‘coverup’. In that the Council did not admit that it had made a mistake and then changed course, this claim is justified.
  5. When Mr C asked a councillor to speak to the chief executive on his behalf, the chief executive told him he believed there had been no deceit. It is true that, for almost all of the fifteen years of the dispute, council officers had acted in good faith, under the false belief that they could compel Mr X to repair the carpark.
  6. The email of 18 October 2018 shows that, having discovered its error, the Council was not frank. This caused Mr C distress. It confirmed to him that the Council had deceived him.

Access

  1. I do not find the Council at fault for its actions about the change of use of the neighbour’s garage. Mr C says this change of use led to an escalation of tensions. Neighbours have blocked his access. They have quarrelled. People have thrown stones through his house windows and vandalised his cars.
  2. The easement allowing Mr C to cross the carpark was a private law contract between Mr C and Mr X. The disputes with neighbours are private disputes.
  3. Mr C says the dispute arose because the owners of garages nearby used their garages as business premises. The Council investigated this and found no change of use. Mr C says he provided the Council with evidence in support of his claim but this appears to be a matter where Mr C disagrees with the Council officer’s conclusions. We cannot find fault on that basis.

Agreed action

  1. The Council has agreed that, within four weeks of the date of this decision, it will:
      1. Send Mr C an explanation and a written apology for the distress caused and an explanation of the failure of the 2018 notice; and
      2. Pay him £3,000.

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Final decision

  1. I have decided the Council was at fault. The Council has agreed to my suggested remedy. I have closed my investigation.

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Parts of the complaint that I did not investigate

  1. For the reasons given above, I did not investigate most of the events that occurred before late 2017 other than as background.

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Investigator's decision on behalf of the Ombudsman

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