Summary: Mr B complained that the Environment Agency had not rectified problems caused by faulty flood defences and surface water drainage installed many years ago. We cannot find fault with the Agency’s actions.

The complaint

1. Mr B complains that the Environment Agency:
• refuses to put right problems caused by faulty construction of a flood defences (near to but not on his property) in 2001, which causes flooding in his property; and,
• refuses to put right, or support a solution to, the problem of surface water flooding from neighbouring farmland. Mr B believes the problem was caused by the Environment Agency’s poor design of the drainage system.

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The Ombudsman’s role and powers

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 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)
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 complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Environment Agency

5. We can only consider complaints against the Environment Agency about flood defences and land drainage. The Environment Agency has the power to carry out land drainage or flood protection works in respect of main rivers. Councils have the same power in respect of ordinary watercourses and surface water drainage.

What happened

Background

6. Mr B lives in property Z. He purchased the property in 2012.
7. In 2001 the Environment Agency (the Agency) improved some flood defences to protect property Z, with the agreement of the owner at that time. The defences were designed to protect property Z from flooding from a nearby river. The Agency says they were not designed to protect against surface water flooding.
8. The Agency also says that responsibility for the maintenance of the flood defences rested with the owner of property Z. It says the property was sold after the defences were installed and the new owner also bought the adjoining field. In order to access the field, the new owner removed a section of the flood defences and possibly reduced the height of them. It also does not think any of the owners maintained the flood defences.
9. Mr B says he was not made aware of the flood defences when he purchased the property in 2012.

2015/16

10. Property Z was flooded in December 2015. The Agency accessed flood recovery funding to repair damaged flood defences. It carried out repair work to property Z’s defences in 2016. It says this work was a one-off event, outside its normal remit, as it concerned an ordinary rather than a main watercourse.

2017

11. Mr B complained to the Agency in September 2017 about the state of the flood defences: he said they were damaged and the Agency had delayed in resolving the issue. He said he had incurred a £90,000 loss due to the faulty flood defences. The Agency visited him in October 2017 and said Mr B was happy with the works to the flood defences.
12. Mr B contacted the Agency in November 2017 asking for a response to his complaint; in particular the damage he had incurred which he considered was the Agency’s fault.
13. Property Z flooded again at the end of November 2017 and the Agency visited again. It promised to seek legal advice about whether it held responsibility for these issues. It responded in writing on December 2017 summarising the situation and said it would inspect the defences.
14. Mr B escalated the complaint saying that the Agency were responsible for the damage to his property due to the poor construction of the flood defences and badly constructed drainage which directed surface water from the neighbouring farmer’s fields onto his property.

2018

15. The Agency responded in January 2018 saying it could not prevent every incident of flooding, that Mr B should sign up to the flood alert system and instigate a maintenance programme for the flood defences. It also suggested a copy of the letter should be held with the deeds for the property so any future owners of property Z would be aware of the flood defences.
16. Mr B strongly disputed the Agency’s view: He said the problem was down to poor construction and drainage from the neighbouring fields, which the Agency was responsible for. He denied he was able to, or should, maintain the flood defences. He said the Agency was repeatedly ignoring his suggestion for the drainage from the field to be re-routed into a ditch. He requested another visit.
17. The Agency visited Mr B in February 2018 and sent a follow-up email summarising the meeting. It said Mr B was satisfied that the wall at the front of the property was working correctly. But he believed the penstock at the rear was not working or could not cope with the volume of water. He did not wish the Agency to carry out any further work as he considered the system was not fit for purpose. He had suggested an alternative solution: digging a new ditch to drain the water off the neighbouring fields. The Agency agreed to carry out some modelling to see if the proposal was a viable option and if it was it would consider progressing the matter further. It asked Mr B if he was happy to close down the complaint.
18. Mr B was satisfied with the suggested way forward but did not wish to close down the complaint.
19. After further email contact the Agency visited Mr B again in May 2018 and sent a follow-up email summarising the discussions. The Agency had found plans from work carried out in 1996 and 2015, showing an existing culvert under the road at the front of Mr B’s property. It said if the culvert was still there then it would not object to Mr B constructing a new ditch at the side of property Z.
20. The Agency also offered to re-route the drain at the rear of his property but Mr B declined this. The Agency re-iterated that its permissive powers only related to works to main rivers, which was the watercourse at the rear of property Z. The watercourse and ditch, causing the current problems, were ordinary watercourses and the responsibility of the land-owner.
21. Mr B replied in June 2018 saying the Agency had caused the problems by re-routing the drainage ditch under property Z in 1990 and it should put it right now.
22. In July 2018 the Agency sent a letter to Mr B setting out its view on the issues:
• The Agency had improved the flood defences in 2001 and responsibility for them passed to the landowner.
• The Agency looks at flood risk from the main watercourse at the rear of the property but not the ordinary watercourse at the front.
• It believes the defences have been altered since 2001 and other water sources connected to the culvert running under property Z. It also considers the drainage from the field may have changed or not be as effective.
• It has offered to repair the culvert running under property Z as it is blocked, but Mr B declined.
• It offered to reroute the water around the back of the property into the watercourse at the front but Mr B had declined this also. (Mr B denies he refused this option).
• The Agency could not support Mr B’s preferred option of digging a new ditch to the side of his property as it considered it would increase the risk of flooding to a neighbouring property.
• It had put forward two further options to be discussed at the next meeting: either a different drainage system into the main watercourse at the rear or property level protection.
23. Mr B continued to insist the Agency needed to put right the original drainage work from the 1990s which routed the water from the neighbouring fields into his property. The Agency said it could not meet him until September. It suggested he spoke to his neighbour about whether he could improve the drainage on his land and to the local council about his suggested plan to re-route the water in the ordinary watercourse at the front. Although the Agency did not support this option it had no powers in respect of the ordinary watercourse and the council may take a different view.
24. Mr B contacted the council who visited his property in August 2018. Mr B said the council agreed that the flood defences and drainage had been poorly constructed. He requested the Agency put it right.
25. The Agency visited again in October 2018. Mr B considered the sluice gate had been constructed badly which allowed water to flow into his garden and property. The Agency said it would ask a senior engineer to investigate the sluice gate. Mr B also reiterated his wish to dig a new ditch and wanted the Agency to explore a new drainage system and/or property level protection.
26. The Agency wrote to Mr B in November 2018. It said there were no documents relating to the 2001 construction work. But an existing employee had confirmed the defences were constructed properly and it did not move or replace any ditches. It considered there may be a degree of permeation from the side of the defences and significant ground levels of water after heavy rainfall. But it repeated its view that previous owners had altered the defences and that Mr B should have been aware of the flooding/defences during the purchase of property Z.
27. The Agency visited Mr B in December 2018 and agreed to investigate the leakage issue around the defences. It also repeated its view that it was under no obligation to carry out any works to the flood defences.

2019

28. The Agency investigated the sluice gate in February 2019 and concluded there were some issues with the drainage system, particularly the sluice gate. As a gesture of goodwill, it agreed to undertake some improvement works.
29. In May 2019 the Agency concluded the works had been successful and prevented flooding to property Z. It agreed to consider a new proposal put forward by Mr B involving him and two other adjacent landowners.
30. In July 2019 it said it could not support the proposals because it believed they would increase flooding to a neighbouring property and it could not justify further work on risks from ordinary watercourses and surface water. It accepted it should have treated Mr B’s correspondence as a formal complaint sooner but could not help him further. It directed him to the Ombudsman.

Analysis

Flood defences

31. The flood defences were improved in 2001, 11 years before Mr B purchased his property. The flood risk and responsibility for the flood defences should have been clarified as part of the purchase process. Given the time that has elapsed, and the fact that they have been altered by subsequent owners and not maintained, I cannot conclude that the flood defences were poorly constructed.
32. If Mr B considers the Environment Agency is responsible for the flooding and damage to his property he needs to seek legal advice.
33. Even though the Environment Agency is not responsible for the defences it undertook repair work following flooding in 2015/16 and carried out further repairs in February 2019, which has improved the situation. I cannot find fault with its actions.

Drainage system

34. The original drainage system to deal with surface water was installed in the 1990s. It is too long ago to investigate the appropriateness or effectiveness of the scheme now. The Environment Agency is not responsible for dealing with risks from surface water drainage and it is evident that the system has changed over the years.
35. Despite this the Environment Agency has made significant efforts to understand the problem and come up with solutions. Mr B has rejected the proposals and the Agency has considered his alternatives. However, it cannot support them because it considers they will increase flooding to other properties. But it has made clear that as the proposals concern flood risk from surface water and an ordinary watercourse he could seek further advice from the local Council.
36. I cannot find fault with its actions.

Complaint

37. Mr B first complained in September 2017. The Environment Agency did not send him a final response until July 2019. This process took too long and the Agency has acknowledged this. However, I consider the delay was largely due to the Agency’s efforts to engage with Mr B to find a solution. Although not ultimately successful, I cannot find fault with its intentions.

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Final decision

38. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman