Summary: Mr X complained the Council, as the regulatory authority, failed to provide him with advice and assistance when his property was being damaged by a nearby landowner who was pumping water into a stream at high pressure. The Council did not respond immediately to Mr X but was not required to. It did respond to Mr X’s concerns and was not at fault. It was at fault when it failed to respond to Mr X’s later correspondence and to address the queries he rose. This caused Mr X some frustration and the Council has agreed to apologise to him for this. It has also agreed to review its procedures to prevent this happening in future.

The complaint

1. Mr X complained the Council, as the regulatory authority, failed to provide him with advice and assistance when his property was being damaged by a nearby landowner who was pumping water into a stream at high pressure.

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The Ombudsman’s role and powers

2. 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)
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

4. I have considered the information supplied by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries and the relevant legislation.
5. I gave Mr X and the Council the opportunity to comment on a draft of this decision.

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What I found

6. 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.
7. 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. The Council is a LLFA. The purpose of ordinary watercourse regulation is to control certain activities that might have an adverse impact on flooding.
8. The Land Drainage Act 1991 sets out the powers of councils as LLFAs in relation to ordinary watercourses.
9. The Council’s criteria for investigating reports of flooding is:

Level 1

• Sites of known fatalities.
• Major flooding to properties (5 or more).
• Flooding on A and B Class Roads causing complete closure (National Speed Limit Roads).

Level 2

• Flooding to properties (1 to 4).
• Flooding to Commercial Properties
• Flooding to A and B Class roads causing potential danger to traffic (all Speed Limits).
• Flooding to unclassified roads causing complete closure.

Level 3

• Flooding to garages and outhouses.
• Flooding to unclassified roads causing minor obstruction.
• Damage to buildings caused by water splashing.

Level 4

• Flooding of the highway causing splashing to pedestrians.

Level 5

• Works to alleviate nuisance (flooding to gardens, open space, etc.).
12. The landowner is responsible for maintaining a watercourse within or adjacent to any boundary of their property and for ensuring it is clear of any obstructions.

What happened

11. In May 2018 Mr X noticed the water in the stream at the edge of his property was running faster than usual. He says a nearby landowner was pumping water into the stream causing damage to the sides and bed of his section of the stream. Mr X says he tried phoning the Council but no-one answered.
12. Mr X wrote to the Council four days later setting out his concerns about the landowner pumping water at high pressure and severely damaging his section of the stream. Mr X wrote to the Council again the following week as he had not received any assistance. The Council acknowledged Mr X’s letter two days later. The Council logged this with the Council’s Environmental Health Department who phoned Mr X and an officer visited to investigate the potential damage to Mr X’s property. They noted no risk of flooding and reported this to the Council’s Drainage Coastal Protection Team. It did not meet the criteria for an urgent site visit.
13. An engineer from the Council’s Drainage Coastal Protection Team visited the site at the end of May 2018. The Council wrote to Mr X in early June 2018. It said it had attended the site and found no offence under the Land Drainage Act 1991. Mr X responded. He considered there was an offence which caused damage to his property.
14. The Council wrote to Mr X in July 2018. It said it found no breaches to enforce but suggested Mr X seek legal advice regarding the damage caused to his stream in case he chose to pursue private action in court. It provided him with emergency contact numbers for reporting flooding. It said if Mr X was concerned about pollution he should contact the Environment Agency, the regulatory body for pollution in watercourses, following or during incidents.
15. Mr X remained unhappy and contacted the Council in August 2018 with his comments on the Council’s response and requesting a further response. The Council acknowledged Mr X’s comments and agreed to respond within 10 working days. Mr X received no response and contacted the Council again in October 2018, chasing a response, then again in early December. He had not received a reply from the Council. The Council acknowledged Mr X’s letter. It said Mr X would receive a response within 10 working days. Mr X wrote again at the end of January 2019 as he had not received a response. The Council replied. It said a response was prepared in December 2018 but it appeared from his correspondence he had not received this. The response said Mr X should contact a Council officer who would arrange a site meeting. Mr X remained unhappy and contacted the Ombudsman. A Council officer has since visited Mr X. The officer says they gave Mr X advice but no flooding was evident and so there is no basis on which the Council can take action.

Findings

16. Mr X says if the Council had visited earlier it could have taken action and reduced damage to his property. The Council prioritises action based on the criteria set out in paragraph 9 above. The water was not causing flooding to Mr X’s properties and so would not merit a priority visit. Even if the Council had visited sooner, I cannot say it could, or would, have taken action to prevent water being pumped into the stream.
17. 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. The Environment Agency guidance suggests councils should take a risk-based approach in deciding what enforcement action to take. The event was an isolated incident and the landowner has not obstructed the watercourse or altered its flow permanently. The Council was not required to take action against the landowner. The Council has considered all relevant matters, including its policy and evidence from a site visit, before deciding not to take enforcement action and so there was no fault. As there was no fault, the law says I cannot question its decision. The Council has now provided Mr X with emergency numbers to call if there is a risk of flooding in future.
18. If Mr X believes his property was damaged by the actions of his neighbour, it is open to him to seek legal advice and take the matter to court himself.
19. The Council failed to respond to Mr X’s letters of August, October and December 2018 and this is fault. Several times it promised to respond within 10 working days but did not. This caused Mr X some frustration and inconvenience as it left him with some unanswered queries. A Council officer has since visited Mr X to discuss his concerns which goes some way to remedy the frustration caused.

Agreed action

20. Within one month of the final decision on this complaint the Council has agreed to write to Mr X and apologise for its failure to respond to his letters.
21. It has also agreed, within two months of the final decision, to review its complaints procedures to ensure letters of complaint are responded to within the agreed timescales.
22. It should provide us with evidence it has completed these actions.

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Final decision

23. I have completed my investigation. The Council was not at fault for deciding not to take enforcement action. However, it was at fault when it failed to respond to Mr X’s letters, causing him unnecessary frustration. It has agreed to take action to remedy the injustice this caused.

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Investigator's decision on behalf of the Ombudsman