Summary: Mr B complains that the Council has failed to use its powers under the Land Drainage Act 1991 to reinstate an ordinary watercourse resulting in his property being at risk of flooding. The Ombudsman finds no grounds to criticise the Council’s decision that use of its powers was not warranted in this case.

The complaint

1. Mr B complains that the Council has failed to use its powers under the Land Drainage Act 1991 to reinstate an ordinary watercourse as a result of which his property is at risk of flooding.

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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 all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Legal and administrative background

The Land Drainage Act 1991

6. Under common law, and under the Land Drainage Act 1991, if a stretch of watercourse runs on or under a person’s land, or on the boundary of that land, the landowner has duties and responsibilities in relation to that water. The landowner is referred to as the ‘riparian’ owner of the watercourse.
7. The Land Drainage Act 1991 says riparian owners must maintain watercourses to ensure the free flow of water is not obstructed. If the riparian owner fails to comply with their legal responsibilities, the Council has the power to take enforcement action.

The Flood Water and Management Act 2010

8. The Flood Water and Management Act 2010 set up Lead Local Flood Authorities (LLFAs) which, in England, are higher tier authorities such as the Council. The 2010 Act incorporates the powers of the Land Drainage Act 1991 but also enables LLFAs to consider flood risk from surface water and groundwater sources and to undertake works to mitigate their effects where they consider it appropriate. Under these powers, if a landowner takes action that adversely impacts the flood risk to another landowner’s property, the Council has the power to serve a legal notice on the responsible party to carry out remedial works to the watercourse channel to resolve the issue.

The Environment Agency

9. The Environment Agency had responsibility for investigating flooding risk caused by development until 2012 when this power was passed to the new LLFAs.

The Council’s flood risk management strategy

10. The Council has a ‘Local Flood Risk Management Strategy’ which sets out its powers. It says the Council is responsible for overseeing the flood risk from ordinary watercourses, groundwater and surface water run-off. As the land drainage authority, it has powers under the Land Drainage Act 1991 to: implement and maintain flood defences on ordinary watercourses; maintain flows; and remove obstructions and any unauthorised structures on ordinary watercourses.
11. Ordinary watercourses include all rivers and streams not designated as a Main River and all ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers) and passages through which water flows.

Key facts

12. In January 2018 Mr B asked the Council to investigate water flowing into his driveway. He said a culvert on land next to his property had been covered over some years ago and the ground around it raised. This had caused problems in the past and was causing problems again due to recent heavy rain and the new owners of the land installing fencing.
13. An enforcement officer, Officer X, visited the site a few days later and took photographs.
14. Mr B chased up a response in February 2018 saying the situation was getting worse. Officer X responded stating he would arrange a meeting with the landowners (Mr and Mrs C) to discuss what had happened and what, if any, actions were open to the Council.
15. Mr B replied that, over the last few days, the water level had risen significantly even though it had not rained. He provided photographs showing Mr and Mrs C had begun building a block and cement barrier to stop water flowing into the culvert.
16. In March 2018 Officer X met with Mr and Mrs C on site and took photographs.
17. In July 2018 Officer X visited the site with Mr B and his local councillor.
18. Officer X contacted the Environment Agency who confirmed it had given consent for a small section of culverting but a previous owner of the land had carried out further culverting without consent.
19. The Council’s investigation found that in 2000 the watercourse was not culverted and was outside the curtilage of Mr and Mrs C’s property. By 2005 the watercourse had been culverted and incorporated into the curtilage of Mr and Mrs C’s property by a previous owner. At this time Mr B’s property was not developed and was largely permeable land.
20. In 2009 the then landowners applied for retrospective planning permission to include the culverted land adjacent to their boundary into the curtilage of their property. They had been using the land as an extension of their residential curtilage and laid a drainage pipe in the watercourse and covered it with chippings. The Environment Agency was consulted on the application and stated it had already asked for the culvert to be returned to its former state and that it had powers under the Land Drainage Act to enforce this.
21. In 2012 the Environment Agency’s powers under the Land Drainage Act were passed to the Council. The Environment Agency had not taken any enforcement action against the culvert. By 2016 Mr B’s land had been fully developed and the track was now constructed of impermeable tarmac.
22. The Council was not certain when the length of non-consented culvert was installed but it believed it had been in place for several years. It found that, since this time, the track had been surfaced with an impermeable material that would have affected any previous channelling of surface water or soak away properties that existed previously. The situation was complicated by the existence of springs and groundwater emanating from sloping land onto the track which would not naturally run into the watercourse in any event. The Council considered the reinstatement of the open section of the watercourse alone would not address the issue. It considered further works to channel the surface water towards the watercourse/culvert would be needed which would be outside its powers under the Land Drainage Act.
23. In October 2018 Officer X wrote to Mr B explaining the works within the curtilage of Mr and Mrs C’s property had been carried out about seven or eight years previously. The works to the first section of the culvert were undertaken with land drainage consent from the Environment Agency but later works to enclose the remainder of the culvert were done without consent.
24. Officer X confirmed the culvert was carrying a spring, as intended, which was flowing on each of his visits at different times of the year. But the spring causing problems for Mr B was a different one that had moved around over the years and was now issuing onto Mr B’s driveway. He said that, although some of the works to the culvert were carried out without consent, the current problem appeared to have only started much more recently with the natural movement of the spring. In addition, the fence and wall between Mr B’s property and Mr and Mrs C’s property was stopping water from entering the area where the watercourse channel would have previously been so it would not be able to make its way to the channel even if it was still in place. Officer X explained the Council had no powers to require Mr and Mrs C to alter the fencing because its only powers were in relation to the watercourse. So, the Council did not intend to take any action.
25. Mr B was unhappy with the Council’s stance and, on 7 January 2019, made a complaint.
26. On 18 February 2019 Officer X and the Flood and Coastal Asset Manager visited the site to reassess the situation. Officer X contacted South West Water to obtain any information they could provide about the watercourse. Officer X wrote to Mr B updating him and said he would take legal advice regarding the range of the Council’s powers in this situation.
27. On 7 June 2019 Officer X sent a stage 1 response to Mr B explaining the Council’s position had not changed and it did not intend to take enforcement action. It said Mr B could consider taking private civil action against the adjoining landowners if it was not possible to reach a mutually acceptable arrangement with them.
28. Mr B requested that his complaint be escalated to stage 2 of the Council’s complaints procedure on 20 June 2019. The Head of Highways and Infrastructure responded at stage 2 on 15 July 2019 but did not uphold the complaint.

Analysis

29. The law provides councils with a discretionary power, rather than a duty, to take enforcement action. It is a matter for officers’ professional judgement whether enforcement action is expedient based on the particular facts of the case.
30. The Council says that, with limited resources, its priority is to mitigate flood risk to residential dwellings and key infrastructure. It must be certain that, in exercising its discretionary powers under the Land Drainage Act, it would be doing so in the knowledge that there would be a direct improvement or benefit through its actions. It also needs to consider the outcomes which would be achieved compared to public expenditure incurred in using such powers.
31. The Council considered the risk of flooding and its impact to Mr B’s dwelling and decided there was only minor impact to a private driveway and low risk to the dwelling. In addition, the re-opening of the culverted watercourse would, on its own, have very little impact on the ability of water to flow into the watercourse because of the presence of the brick and wood fence positioned between the spring and the culverted watercourse. This fence has planning permission and is not covered by the Land Drainage Act 1991. So, the Council could not require it to be altered. For these reasons, the Council decided use of its Land Drainage Act powers was not warranted.
32. The Ombudsman cannot question the merits of the Council’s decision unless there was procedural fault in the way it was reached. I have found no such fault. I am satisfied the Council properly investigated Mr B’s concerns. The officer visited the site on several occasions and liaised with the current owners of the culverted section of the watercourse and contacted South West Water and the Environment Agency for information. The Council also used other information such as aerial photographs and maps in its investigation.
33. The Council has explained the reasons for its decision that use of its powers was not warranted. In the absence of administrative fault, there are no grounds to question that decision. There is no requirement for the Council to use its powers which are discretionary.
34. In 2009 the Environment Agency requested the land be returned to its former state and stated it had powers to enforce this under the Land Drainage Act. Mr B says that, as responsibility has now passed to the Council, it should take enforcement action. The Council accepts some of the culverting was done without the Environment Agency’s consent but this does not mean it must take enforcement action. Whether such action is warranted is a matter for officers’ professional judgement. They did not consider that reinstating the culvert was the solution to the flooding of Mr B’s driveway. This is a decision they are entitled to make.
35. I accept Mr B strongly disagrees with officers’ view, but the Ombudsman does not question the professional judgement of council officers unless there is evidence of fault in the way their decisions were made. I am satisfied officers properly investigated Mr B’s concerns. In these circumstances, there are no grounds to question their view.

The handling of Mr B’s complaint

36. Mr B complained to the Council on 7 January 2019. Officer X updated Mr B on 26 February 2019 explaining he and his manager had visited the site again and would be taking legal advice. He also asked Mr B to provide further information.
37. The Council did not provide a formal stage 1 response until 7 June 2019. This was a significant delay and was fault. It would have been reasonable for the Council to obtain legal advice and respond to the complaint by April 2019. In addition, Officer X did not inform Mr B of his right to escalate the complaint to stage 2. This was also fault. However, I have seen no evidence to suggest the delay in responding to Mr B’s complaint caused him a significant injustice. In these circumstances, I do not intend to pursue this issue further.

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Final decision

38. I do not uphold Mr B’s complaint.
39. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman