Summary: Mr B complains the Council has carried out work to his property in a way that he did not consent to. He says the work means he has lost several metres of his garden and the garden is now not safe for children. The Ombudsman does not find fault with the Council.

The complaint

1. The complainant, who I refer to as Mr B, complains about how the Council has carried out work to his garden. He says:
• the Council often changed the plans while works were ongoing
• it moved a manhole into his garden without his permission
• it made a ditch at the end of his garden deeper and wider without telling him
• it dug a new ditch, which now floods with water
2. Mr B says the finished works do not match what he consented to. He also says the work was carried out to a poor standard and the Council has not sufficiently remedied this. He says the works took far longer than agreed and council officers would have meetings in his garden without prior notice.

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What I have investigated

3. I have investigated whether the works the Council completed were in line with what Mr B consented to. I have not investigated the quality of workmanship for the reasons outlined at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

7. I considered the initial information provided by Mr B. I discussed the complaint with Mr B then made further enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

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What I found

8. A riparian owner is the owner of land next to a watercourse, or which has a watercourse running through it. A watercourse is any flow of water, such as a river, stream, ditch or culverted pipe. Riparian owners are responsible for maintaining the watercourse.
9. The Land Drainage Act 1991 (“the Act”) gives local authorities the power to require riparian owners to maintain the watercourse. Section 25 of the Act says that where any watercourse is in such a condition that the proper flow of water is impeded, the local authority may serve notice on the owner to remedy that condition.
10. Local authorities will normally engage with riparian owners to agree a solution before serving a formal notice. The Council’s policy is to consider issuing a formal notice if the owner has failed to respond or agree a course of action. The Council does not have a duty to serve a notice as it is a permissive power. However, it is entitled to do so should it consider necessary.
11. Riparian owners do not have a duty to upgrade or improve a watercourse. The local authority may only require them to take such steps necessary to maintain the natural flow of water.

Background

12. In mid-2016 Mr B’s neighbours on the northern boundary of his garden complained to the Council about flooding to their garden and driveway. The Council investigated and found the problem was due to a watercourse that runs through a ditch on the northern boundary of Mr B’s garden. Mr B is the riparian owner of the ditch, so far as it is on his property.
13. In late 2016 the Council wrote to Mr B about the problems with the watercourse. It met with Mr B to discuss ditch maintenance. Mr B said he had also suffered flooding, from a piped watercourse on the border between his property and his neighbour on the western boundary. This suggested there was a wider problem. The Council therefore considered the possibility of a grant for improvement works involving Mr B’s property and others.
14. The Council carried out a survey. It shared the results with residents in early 2017. It said it suspected the problems were due to a sudden change in gradient. It also found pipework along the western boundary had become blocked, contributing to the flooding in Mr B’s garden.
15. The Council met with residents in early 2017 to discuss potential remedial works and the funding of this through a grant from the Council. In mid-2017 the Council approved a grant and appointed a contractor. Mr B signed a landowner agreement for the grant.
16. A site meeting took place in early 2018. At this meeting, the Council discussed the design with Mr B. The Council says the plan was to:
• Increase capacity of the pipework
• Install a new headwall with silt trap on the northwest boundary of Mr B’s garden
• Re-grade and re-instate the open watercourse along the northern boundary
• Install a new pipe run from the headwall to a manhole in the neighbouring garden
17. The Council also agreed to remove blocked pipework from the western boundary and reinstate it to an open channel. The Council says this was an added extra to help stop any overland flows in Mr B’s garden and did not directly impact on protecting downstream properties.
18. Mr B says the Council did not tell him it would change the depth or width of the ditch on the northern boundary. He also says the new headwall with silt trap was meant to be built on the neighbour’s property.
19. The Council sent documents to Mr B with a plan of the works. The plan showed the Council would ‘clean out existing ditch’ on the northern boundary and ‘excavate new ditch’ on the western boundary. It showed a new outlet into the eastern side of the existing ditch, running down to a new head wall with silt trap and trash screen in the north-western corner of Mr B’s property. The Council also sent Mr B diagrams of the new outlet and headwall.
20. Mr B emailed the Council to say he was happy for work to continue in line with the plans. The works started shortly afterwards but due to bad weather were placed on hold after a few days of work.
21. The Council carried out a consultation on the works. One of the consultees was another local council, who raised concerns the design could impact on several trees that were subject to ‘tree protection orders’ (“TPO”). The Council met with TPO officers at the property to discuss their concerns. The Council emailed Mr B to say officers would be meeting at the property six days beforehand.
22. At the meeting, officers found no trees with TPO’s would be directly affected by the works. However, reinstating an open channel on the western boundary could undermine the stability of two mature trees. If this went ahead, the trees would need to be felled, which would cost more than the grant money allocated. The Council proposed an alternative of reinstating the open channel for two to three metres and ending it before it impacted on the trees. This would not stop the problem of overland flows but act as a sump to take water into the piped system downstream.
23. Mr B raised concerns about the change and several other issues with the works. These included:
• He did not have enough information about the depth and size of the sump, whether it would be permanently full of water and if it would be a hazard to children;
• The ditch on the northern boundary appeared to be significantly deeper than before; and
• The Council started work in bad weather, so churned up his garden – he asked the Council to confirm his garden would be reinstated to its previous condition.
24. The Council agreed to meet with Mr B on site to discuss the works. The Council says Mr B agreed to the alterations at this meeting but asked it to shallow the banks of the ditch on the northern boundary. Mr B says the Council kept changing the design, so he could not keep up with what it was doing. It does not appear there is a record of exactly what was said at the site meeting.
25. Around two weeks later, a site meeting took place on the neighbour’s property. During this meeting, the contractor raised another problem with the design. It said the position of existing pipes into the manhole in the neighbour’s garden meant the new pipe needed to be installed at a different angle to originally planned. This meant it was necessary to change the planned location of the headwall in Mr B’s garden. There is no record the Council or contractor told Mr B of any change in position of the headwall.
26. The following day the Council wrote to Mr B and said it would shallow the banks where possible but could not do so everywhere as it would undermine tree roots. Mr B responded with concerns about how the works had been carried out and delays in it being finished. Mr B said the work, which was meant to take two weeks, was now in its fifth week.
27. The Council said it would make good the garden. It agreed a plan with Mr B to topsoil a section of the garden and leave further topsoil for Mr B to use himself on another section. Mr B raised a further concern that the Council had built the headwall in his garden without his permission.
28. The contractors completed the works in early May 2018. Mr B complained to the Council about the condition of his garden and the quality of workmanship. The Council held a meeting with Mr B and agreed the works were not to a proper standard. Mr B also raised concerns about the durability of the sandbags on the headwall. The Council agreed to replace these with concrete sandbags.
29. The Council set out the remedial works it would carry out in an email to Mr B. Mr B agreed to the works. The Council used a different contractor to complete the works, which took place in June 2018.
30. Mr B made another complaint in July 2018. He complained about the aesthetics of the concrete sandbags, the relocation of the headwall into his garden and that he had lost three metres of garden. The Council responded that it had used all its contingency budget to complete the remedial works and had no funding left to complete a more visually appealing alternative. It said Mr B had not raised this at its previous meeting when it agreed the remedial works.

Findings

31. There are several different factors to this complaint, which make it complex and difficult to pull apart. However, the key question is whether the Council had Mr B’s consent to carry out the works it did. If the Council built something Mr B did not consent to, or if it did not set out clearly what it would build, then there may be fault. If what it built is in line with what Mr B consented to then it is likely there is no fault. For the reasons set out at the end of this statement, I cannot investigate whether the work the Council completed was to a good standard.
32. Deciding whether the works are in line with what Mr B consented to is difficult for several reasons. One is that the design changed more than once, and Mr B raised concerns each time this happened. There are no records of what was said during site meetings, so I can only see those things discussed and agreed in emails. It is therefore difficult to get a clear picture of whether Mr B consented to changes, or if those changes were properly explained to him.
33. Another issue is the conflict between what Mr B and the Council say was part of the design. The plan of works is not very clear and, again, without clear records of site meetings it is difficult to know whether the Council explained the details of the design more clearly in person.
34. For the reasons outlined below, I am not able to reach a finding of fault. Even if there were fault, I could not find this caused significant injustice to Mr B, to the extent I would recommend a remedy.

Initial design

35. Mr B gave his consent after having been sent a plan of the works. On reviewing the plan, it appears unclear to me in several respects. For one, there are no measurements concerning the ditches or the new headwall.
36. In relation to the ditch on the northern boundary, the plan only says, ‘clean out existing ditch’. It does not say anything about re-grading the ditch. There is no record the Council or its contractor explained to Mr B during site meetings that it would make the ditch deeper. Therefore, I cannot find the Council made it clear to Mr B it would make this ditch deeper.
37. This uncertainty, about whether the Council made its design clear to Mr B, could amount to fault. However, I first need to consider its significance.
38. The Council always intended to re-grade the ditch. It was a necessary part of the works. If it had made this clear to Mr B, I cannot say for certain whether he would have agreed to the works or not. I also cannot say what the impact would have been if he had declined the works on this basis.
39. It is probable, most likely even, that the Council would have served a notice on Mr B to carry out works to maintain the natural flow of water. Mr B would have had to carry out these works at his own expense, rather than at the expense of the Council. I cannot say for certain what he would have had to do, how much it would have cost, or whether he would have preferred this option at the time in question.
40. These unknowns make it almost impossible to assess whether the impact of the uncertainty is sufficiently significant that it amounts to fault. It makes it completely impossible to assess what level of injustice that uncertainty may have caused.
41. There are other aspects of the plan that do appear clear to me. For instance, it is clear a new ditch will be excavated on the western boundary. The plan also seems to show clearly that the headwall with silt trap will be built in Mr B’s garden.

Ditch on the western boundary

42. Following the meeting with TPO officers the Council changed the design to only excavate a short section of ditch on the western boundary.
43. I cannot find fault with the Council in respect of this change. It is clear the Council did communicate the change to Mr B and its reasons. The change was necessary so as not to undermine the stability of mature trees.
44. I can see Mr B did raise concerns about this change. He discussed the concerns with the Council at a site meeting. Without a record of that meeting I cannot know what was said by either party. I do not know if the Council suitably addressed Mr B’s concerns about the size of the new ‘sump’, whether it would permanently hold water or whether it was safe for children. However, it appears Mr B did agree for work to continue based on the changed design, as work did continue in this way.

Location of headwall

45. Mr B refers to the new headwall and silt trap as the ‘manhole’ and says the Council moved this into his garden without his permission. Having the reviewed the initial plan, I cannot say the Council is at fault for moving this into Mr B’s garden. The plan showed it would be there from the start, even if its location within the garden changed.
46. There is no evidence the Council told Mr B it would change the location of the headwall within Mr B’s garden. The plan appears to show the headwall up against the boundary right in the corner. A photograph shows its actual position is further into Mr B’s property, at least a couple of metres from the corner.
47. The Council should have consulted with Mr B before it changed the position of the manhole. However, again, I must look at the significance of it not doing so. The location had to be changed due to physical constraints with the pipework. Therefore, it is unlikely there could have been a different outcome.
48. Mr B’s main concern about the headwall is how it looks aesthetically and that it should not have been in his garden in the first place. I have found the plan showed it was going to be in his garden. Its aesthetics would not have changed significantly based on its location within the garden. I therefore do not find this is sufficiently significant to amount to fault and, in any case, could not find it caused a significant injustice to Mr B.

Remedial works

49. I cannot find fault in terms of the remedial works the Council carried out. The Council met with Mr B to discuss concerns he had about the work. It accepted the work was not to an appropriate standard and hired another contractor to remedy this. Emails between Mr B and the Council show Mr B agreed the scope of the remedial works covered the concerns he raised.
50. I understand Mr B later raised concerns about the aesthetic appearance of the headwall and sandbags. Having seen photographs of the structure, I do understand these concerns. I also note that neither the initial plan or drawings provided to Mr B showed or made any reference to sandbags. However, the time to raise this would have been at the meeting with the Council in May 2018, when it still had funds to make further changes.
51. The correspondence does not show Mr B raised concerns about the appearance of the headwall at the time of this meeting. Only that he raised concerns about how long normal sandbags would last. Emails show he agreed to replace them with concrete sandbags. I therefore cannot find the Council did anything Mr B did not consent to as part of the remedial works.

Delays and officers visiting without notice

52. I can see the initial works took between five to six weeks when they were only meant to take two weeks. This was followed by a gap, before further remedial works took place.
53. It is clear then that the works took longer than originally planned. This would undoubtedly have caused disruption to Mr B, who was in the process of his own renovation works. However, the Council has provided reasons for the delays, including bad weather, necessary changes to the design and delays in materials being delivered. These are things that can happen as part of a construction project, so I cannot find fault with the Council in this regard.
54. I understand Mr B is concerned the delays took place largely because of poor workmanship and decision making. For instance, starting the work in a period of particularly bad weather. However, for the reasons below, I cannot investigate the quality of workmanship.
55. I also cannot see evidence within the documentation that there were regular visits to Mr B’s property without notice. I can see the Council notified Mr B of the TPO officer visit in advance. All other recorded visits appear to have been with Mr B. It is possible there were other, informal visits, that were not recorded. However, without evidence of this I cannot reach a finding of fault. It is unlikely that, in any case, I could find this caused significant enough injustice to Mr B to recommend a remedy.

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Final decision

56. I do not find fault in how the Council gained consent and delivered the drainage works to Mr B’s garden.

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Parts of the complaint that I did not investigate

57. Mr B raises concerns about the quality of workmanship by the first contractor. He also raises concerns about damage to his land, including two trees collapsing. I have not investigated these parts of Mr B’s complaint. This is because these are private, civil law matters that Mr B has an alternative remedy for should he wish to take legal action.
58. I have not exercised my discretion to investigate. This is because it is unlikely we could properly assess the quality of workmanship or make any finding on whether this caused damage to Mr B’s property.

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Investigator's decision on behalf of the Ombudsman