Summary: Mr D complains the Council has failed to help him resolve flooding on his private property. The Ombudsman has found no evidence of fault in this matter. The Council did delay responding to Mr D’s complaint but there is no outstanding injustice to Mr D. As such, the Ombudsman has upheld the complaint (because of the delay) and completed the investigation because there is no unremedied injustice.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council has failed to help him resolve flooding caused by a freshwater drain on his land.

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What I have investigated

2. I am looking at events from 2018 onwards.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
4. 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

5. I have considered the information provided by Mr D. I asked the Council questions and carefully examined its response and supporting documentation.
6. I have shared my draft decision with both parties.

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What I found

What happened

7. On 19 November 2018 Mr D contacted the Council. He had been digging in his garden and found an unidentified water source. The Council flagged this as “external flooding to property” and referred the case to the Flood Risk Management Team (Flood Team). Mr D chased up the Flood Team over the next week but was unable to speak to an Officer. On 28 November, an Officer visited Mr D along with someone from the local council. He checked the nearby highway gully and found it silted up and arranged to have it cleared. He noted the water-logged excavation on Mr D’s land was around 1.5 meters deep and at a lower level than the nearby highway. The next day the Council started clearing the gully. Another Flood Team Officer attended the site. He concluded the water source was likely to be an “uncovered field tile type drain” used on agricultural land. The drain ended on Mr D’s land and did not extend under the highway.
8. On 3 December Officers met Mr D and advised the Council considered this to be a private drainage issue. The Council could not help resolve the problem. On 5 December Mr D told the Council he had turned off a water pump and so water would now run off from his property onto the highway. The next day the Flood Team and Highways Team discussed the case. They agreed to ask the Council’s Legal Team about who was liable for any works. On 10 December Mr D submitted a formal complaint to the Council.
9. The Council corresponded with Mr D three times in January 2019 and on 1 February. On 22 February, the Council’s Legal Team wrote to Mr D. It apologised for the delay. It explained that every highway location had a width and depth. In this case the old land drain in Mr D’s garden was below the depth of the highway. There was no evidence the land drain continued under the highway and so it was not for the Council to resolve. The responsibility fell to Mr D. The Council could provide advice but would not undertake any works. On 27 February Mr D asked the Council to review its complaint response. The Council replied the same day that it did not see a purpose to escalating the complaint because it had already set out its role and was not in a position to carry out the works Mr D wanted.
10. After further contact from Mr D, the Council’s Flood, Highways and Legal teams met to consider his case in March. All the teams agreed the cause of the flooding was not the Council’s responsibility. It drew up a list of options to assist Mr D. On 1 April, the Council wrote to Mr D setting out the options and offered a site meeting. On 24 April Officers met Mr D. In May the Council wrote to him confirming what had been discussed. It was a detailed letter and included the options suggested by the Council to resolve the flooding including a system to allow groundwater to find its natural level. Mr D asked if the Council would provide materials and it said it would consider this. In the letter, the Council confirmed it had looked at the request. The estimated costs of materials were £1,000 which it could not justify spending on works to a private property.

What should have happened

11. The Council’s Flood Team considers reports of flooding. In addition, the Highways Team will consider cases where flooding may impact on the highway. The Council takes account of its responsibilities as set out in its Flood Risk Strategy. This includes how the Council must prioritise investigations and works relating to flooding. For example, if a flood affects internal property and is likely to frequently occur it would be classed as high priority. If flooding is limited to an exterior property it would have a lower priority.
12. The Council’s Ordinary Watercourse Consenting and Enforcement Policy sets out how riparian owners (people who own land with a watercourse running through it) are responsible for the maintenance of the watercourse. If a watercourse is not functioning the Council can pursue the riparian owner to correct the defects. It will only do so where there is a significant flood risk.
13. In addition, the Council may decide to provide advice to a private property owner about flooding. There is no duty on the Council to carry out works or provide funding where a drain/ watercourse is on private land.

Was there fault by the Council

14. The Council delayed responding to Mr D’s complaint. He wrote to the Council on 10 December 2018 but did not receive a substantive reply until 22 February 2019.
15. In respect of the substantive part of Mr D’s complaint regarding the drain I do not find evidence of fault by the Council. To be clear, the Ombudsman’s role is not to assess the cause of the flooding or propose a remedy on how to fix it. We are solely looking at whether the Council has adhered to its policies and procedures. I am satisfied it has done so in this case. Mr D feels the Council should take some responsibility to help resolve the flooding on his land. The Council has correctly explained to Mr D that it has no such responsibility and that he, as the riparian owner, has to resolve the issue. The flooding is on private land and deemed low risk under the Council’s policies and not impeding the highway. The Council has investigated and offered Mr D advice but it is not required to do anything further.
16. I appreciate that Mr D would like the Council to supply or fund materials for his works to the drain. The Council considered this and explained to Mr D why it was not required to assist him. There is no fault by the Council.
17. Mr D says the technical solutions put forward by the Council will not work. That is not for the Ombudsman to determine, the Council has fulfilled its limited obligations to Mr D in providing the advice which it considers to be viable. It is for Mr D to decide what action he takes to resolve the flooding and not the Council.
18. Mr D would also like the Council to connect the drain to the main sewer. The Council has refused to do this work. There is no fault because there is no duty on the Council to connect private land drains to a main sewer.
19. I appreciate Mr D disagrees with the decisions made by the Council. However, the Ombudsman will not question the validify of decisions taken without fault: that applies to this case.

Did the fault cause an injustice

20. Mr D had to wait longer than usual for a response to his complaint. I note the Council explained why it had taken so long to reply. In view of this I do not see there is any outstanding injustice to Mr D.

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Final decision

21. I have upheld the complaint (because of the delay identified) and completed the investigation.

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Parts of the complaint that I did not investigate

Mr D refers to events relating to a manhole cover going back 20 years, there is no basis for the Ombudsman to look back at events occurring such a long time ago as I have previously explained to Mr D.

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Investigator's decision on behalf of the Ombudsman