Summary: Mrs Y complains about the Council’s decision not to take enforcement action against her neighbour, Mrs X, for allegedly blocking a known route of surface and flood water. The Ombudsman finds no evidence of procedural fault in the Council’s actions, and so we will not question the merits of its decision not to enforce against Mrs X. However, there was some delay in the Council’s early correspondence with Mrs Y, which it will apologise for.

The complaint

1. The complainant, whom I will call Mrs Y, says the Council has failed to comply with its ‘Flood Risk Strategy’ because it has not taken enforcement action against her neighbour, who Mrs Y says has deliberately blocked a known route of surface and flood water.
2. As a result, Mrs Y says any such water is now directed to her property.

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What I have investigated

3. I have exercised discretion to investigate matters from December 2016 when Mrs Y had receipt of Tribunal paperwork and thus had cause to complain. This is because I am satisfied that, due to Mrs Y’s ill health, good reason exists for the Ombudsman to investigate matters which Mrs Y has been aware of for more than 12 months. However I have not investigated matters prior to 2016 for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. During my investigation, I have:
• Discussed the complaint with Mrs Y by telephone, and considered any other information she submitted;
• Made enquiries of the Council and considered its response;
• Consulted any relevant policies, law or guidance before making this decision; and
• Issued a draft decision and invited comments from Mrs Y and the Council. I considered any comments received before making a final decision.

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What I found

8. If a stretch of watercourse runs on or under a person’s land, or on the boundary of that land, the landowner will have duties and responsibilities in relation to that water. In law, the landowner will be referred to as the ‘riparian’ owner of the watercourse.
9. The ‘Land Drainage Act’ (1991) says that riparian owners must maintain watercourses to ensure the free flow of water is not obstructed. If the riparian owner fails to adhere to their legal responsibilities, the law provides councils with the power to take enforcement action against the owner.
10. The Council has a ‘Flood Risk Management Strategy’ which sets outs its enforcement powers. It confirms: “if any ordinary watercourse is found to be blocked or restricting the flow of water, the council have the enforcement powers to serve notice on the relevant land owner under Section 25 of the Land Drainage Act requiring works to maintain the flow of water to be undertaken. If no action is taken to restore the natural flow of water, the council may carry out the necessary works and recharge the full costs incurred to the relevant land owner”
11. The strategy also confirms: “the relevant risk management authority, namely the Environment Agency for main rivers and Herefordshire Council for ordinary watercourses, can take enforcement action against riparian owners if they do not believe that the required maintenance activities or being undertaken and/or the riparian owner has undertaken works that have increased the risk of flooding”
12. Before undertaking any works within nine meters of the watercourse’s edge, the strategy says that owners must seek prior agreement from the Council.

What happened

13. Mrs Y’s neighbour is the riparian owner of a watercourse. In 2015 the neighbour (whom I will call ‘Mrs X’) built a wall within nine metres of the watercourse but did not seek permission from the Council before doing so. As a result of those works, Mrs Y says that Mrs X purposefully blocked a known route of water. The result being, Mrs Y says, is that any flood water would now be re-directed to her property, rather than to Mrs X’s.
14. Mrs X made the following written statement at the Land Drainage Tribunal in 2016: “I built the walls to the rear of my house to create a safe paddock (dogs and sheep), give me some separation from the PROW [Public Right of Way] and to reassure my insurance company that the gap through which water had come had been blocked up”
15. It is the last reason in the above statement with Mrs Y specifically objects to. She says this proves that Mrs X’s intention was to divert a known route of water in order to safeguard her home and satisfy her home insurers.
16. In 2017 Mrs Y complained to the Council about Mrs X’s apparent lack of compliance with her responsibilities as a riparian owner. It was Mrs Y’s view that the Council should take enforcement action against Mrs X.
17. The Council visited Mrs X’s property to view the wall in question on two occasions between late 2017 and early 2018. It reported back its findings to Mrs Y in an email dated 9 February 2018, in which it confirmed: “… we observed a grip (swale) that would act as an overflow from the pond. We noted this grip was not very deep and although the pond would overflow via the grip, water could still lap against the blockwork wall in the event of the water level rising up. The riparian owner of the watercourse needs to take measures to control the flow of water if it spilled from the pond (i.e. either at an overflow or at any other low section of the bank). Whilst the riparian owner has provided a blockwork wall and this has some capacity to withhold water, we do not consider that it was built as a water retaining structure” and, “Based upon the information that has been presented and from our two site visits, this water would spill via the grip and would avoid your property”.
18. The Council decided that it had no grounds to pursue enforcement action against Mrs X because it felt the introduction of the wall had not increased the risk of flooding.
19. Mrs X then applied for retrospective planning permission, seeking listed building consent for another wall built within the grounds of her property. The plans submitted refer to this wall only, and not to the wall which is the subject of Mrs Y’s complaint.
20. The Committee minutes refer to both walls but confirm the Council’s view that the wall at the subject of Mrs Y’s complaint was permitted development and therefore did not require planning consent. The Land Drainage Officer also confirmed the wall did not require land drainage consent because overflowing water would be diverted via the channel.
21. Dissatisfied with the actions of the Council, Mrs Y complained and then approached the Ombudsman.

Was there fault in the Council’s actions causing injustice to Mrs Y?

22. The law provides councils with a discretionary power, rather than a duty, to pursue enforcement action against breaches of the Land Drainage Act. This means that councils are not obliged to pursue enforcement action in all cases but can do so if it considers it is appropriate.
23. In this case, the Council visited the site twice after Mrs Y reported concerns. Officers found a small overflow channel. Mrs X told officers that she planned to deepen the channel to improve its effectiveness. In their professional judgement, officers felt the overflow channel would successfully divert flood water from the pond, and so the wall would not impede the flow of any flood water.
24. Mrs X sent a photograph to the Council of the deepened channel in 2018. Officers also undertook a site visit in April 2019, which confirmed their view that the channel had been deepened by Mrs X, as previously proposed.
25. Mrs Y disagrees strongly with the Council’s view. She relies upon the 2016 Tribunal submission, in which Mrs X apparently admits the wall was built, among other purposes, to block the flow of water. The Council has considered this point. It felt the overflow channel was introduced after 2016, and so the comment about the wall was no longer applicable because any water would now flow into the overflow channel, rather than against the wall. Mrs Y provides evidence that the channel was in place in 2016. She therefore states the Council’s analysis of Mrs X’s statement about the wall is wrong.
26. Regardless of whether the channel was in place at the time of Mrs X’s written statement, the Council is satisfied the channel has since been deepened. The deepening of the channel therefore, in the Council’s view, mitigates any flood risk. Mrs Y disagrees. She says the depth of the channel has not changed since 2016.
27. The Ombudsman is not entitled to criticise or question professional judgement unless we find procedural fault in the decision making which calls into question any subsequent judgements. I have found no procedural fault in this case. The Council is entitled to decide whether there has been a breach and, if so, whether to use its discretionary powers to enforce. It decided the wall in dispute would not impede the flow of water, because of the presence of the channel, and so there was no breach to enforce against.
28. The Council has provided photographs of its recent site visit to show the deepened channel. Mrs Y has also provided photographs of the channel taken in 2016. She has also provided more recent photos from March 2019. She says there is no difference between the photographs taken in 2016 and 2019 because Mrs X has not undertaken any works to improve the channel. In my view, the photograph from 2016 is of low quality, and it is not possible from this to gauge the depth of the channel.
29. Based on the evidence seen, I have no grounds on which to question the Council’s professional view that the channel mitigates any flood risk from Mrs X’s pond.
30. With that said, I do find the Council responsible for some delay. Mrs Y first raised her concerns in September 2017, yet the Council did not offer a substantive response until February 2018. This caused Mrs Y some frustration. There is no good reason for this delay, and so the Council will apologise to Mrs Y.

Agreed action

31. Within four weeks of my final decision the Council will apologise to Mrs Y for its delay in responding to her reports about Mrs X.

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Final decision

32. I have completed my investigation with a finding of no fault in the substantive matter. However, I have found some evidence of delay which the Council will apologise for.

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Parts of the complaint that I did not investigate

33. I have limited the scope of my investigation. I am satisfied the starting point for the investigation should be December 2016, when Mrs Y first had receipt of the Tribunal documents in which Mrs X confirmed the purpose for the wall. I find that Mrs Y could not have reasonably complained about this sooner due to her ill health.
34. I understand Mrs X built the wall in question during some time in 2015. I have not investigated events from 2015 because I find it was reasonable for Mrs Y to have complained about these matters sooner. The law says we cannot investigate late complaints unless we decide there are good reasons.

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Investigator's decision on behalf of the Ombudsman