The Ombudsman's final decision:
Summary: Mr L complains on behalf of a flood action group. They complain about the Council’s inaction over flood risk to their village, particularly from the infrastructure of a major road. The Ombudsman does not have evidence of fault with the Council’s decisions on flood prevention work. So we cannot question the merits of its decisions on those matters.
- The complainant, whom I shall refer to as Mr L, complains on behalf of a local flood action group (the group). He complains that:
- The village he lives in has been flooded over 26 times since a road, under the Council’s control, was upgraded. A key issue is with a pumping station/balancing pond, which Mr L says needs relocating. He says he went on a site visit in 2018 with an officer from the Council. But his concerns have been ignored.
- In 2018 the Council, without justification, restricted his access to the Council.
- He met Council officers in February 2019. But the Council has not produced an accurate minute of that meeting.
- The Council has not consulted him, as a riparian landowner, as it should have done.
What I have investigated
- I have investigated the complaints set out above. Mr L complains about other issues related to flooding, going back to 2002. For the reasons I have set out in paragraph 3, I have only investigated issues that occurred in the 12 months before Mr L’s complaint to us.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr L;
- made enquiries of the Council and considered its response;
- spoken to Mr L;
- sent my draft decision to Mr L and the Council and invited their comments.
What I found
Legal and administrative background
- The Flood and Water Management Act 2010 established the power for some councils to act as the lead local flood authority (LLFA) for their area. Councils also have powers under the Land Drainage Act 1991 to require works to maintain the flow of a watercourse.
- The primary responsibility for flood prevention is with landowners. A council’s powers (as LLFA) are permissive. They need to prioritise works based on need, and take action, using public funds, when they consider they are justified in doing so.
- LLFAs work with other bodies, such as the Environment Agency, water companies, Internal Drainage Boards, emergency services and the Highways Authority, to manage flood risk.
- The SEWMP notes that the Brook that runs through Mr L’s village is in a river valley that is particularly susceptible to surface water flooding. But it does not class the village as a “Critical Drainage Area” – areas where the flood risk is most severe.
Highways authority role
- As highway authority, the Council has legal powers to drain the highway or otherwise prevent surface water from flowing on to it. (Highways Act 1980) These only extend to taking water off the highway so traffic can use it. Case law has found that occasional flooding of the highway does not necessarily mean the Council has failed to meet its legal duty. The law does not require the highway always be completely drained. The Highways Act does not require the Council to prevent water flowing from the highway onto neighbouring land.
The Council’s guidelines for managing repetitive, unreasonable and persistent customer behaviour
- The Council’s guidelines:
- Give examples of behaviours it considers unreasonable and/or persistent.
- Says when it has identified these behaviours, it will consider implementing temporary restrictions on access, such as assigning a designated officer.
- Says the decision to implement any access restriction will be taken by its Compliance and Complaints Manager.
- Say, where it has restricted access, it will notify the individual in writing, with a review date.
- The Council has been in contact for several years with Mr L and his group colleagues, about flood concerns in their village. In September 2017, it advised Mr L the SWMP did not list the village as a Critical Drainage Area. And Critical Drainage Areas were where it typically developed flood prevention schemes. It noted work the District Council and the Environmental Agency were taking to look at options to alleviate flood risk in the village. It also noted a proposed Surface Water Alleviation Scheme (SWAS), to replace a blocked/collapsed pipe.
- Mr L met a Council Environment and Waste team officer in May 2018, including a visit to a site with balancing ponds, associated with a road that was of concern to the group. In July the Council emailed Mr L to advise the balancing ponds were inspected every six months and were working as designed. In November a Council officer told a District Council forum that the Council’s Highways team was happy with the structures in place and the maintenance regime for the balancing ponds.
- In November 2018 the Council’s Compliance and Complaints Manager wrote to Mr L, advising the Council had been in communications with him about longstanding issues. He set out these contacts. The Council’s view was it had exhausted options with Mr L. And his contacts were having a detrimental impact on officers’ and councillors’ time. It was unclear what outcome Mr L was seeking. So, for three months, it would restrict his contact about these issues to a single point of contact, via an email address it gave him.
- Mr L and colleagues were in contact with the Council’s Environment and Waste team officers, requesting a meeting. The meeting took place in February 2019. The Council’s kept a record of the meeting.
- It had had no recent reports of concern from the Environment Agency about the balancing pond. Its Highways’ Team was not proposing any further work.
- It discussed some concerns from the group about residential development. The Council noted it was not the Local Planning Authority, so did not have control over this.
- They discussed several historical matters, such as consultation on the 2012 Flood Risk Strategy. Mr L was concerned he was not contacted, as a riparian land-owner.
- Listed the Council’s contacts with Mr L, and work it had undertaken, over the preceding years.
- Noted more recently it had become more difficult to understand what further actions Mr L wanted.
- Advised its view was it had fulfilled its duty as LLFA.
- Advised its view was it no longer needed to ask Mr L to contact it through a single point of contact.
- Advised it was happy to attend future group meetings that considered any viable requests or proposal. But outside of that contact, officers in its Flood Team would no longer respond to oral or written communications. It would log and read all communications.
- Referred Mr L to the Ombudsman.
- It is not the Ombudsman’s role, in the absence of administrative fault, to question the merits of the decisions councils make when deciding priorities. So if a council has assessed the need for flood defence work, followed the proper procedures and relevant guidance in a timely way and then reached a decision, we are unlikely to uphold a complaint.
- The evidence suggests the Council’s Environment and Waste department has engaged with Mr L and his group. But:
- It notes the Council is not the authority that grants planning permission (that is the District Council). So it could only respond to consultations on planning applications and provide responses in line with planning law.
- The South Essex Surface Water Management Plan does not class the area Mr L lives in as a Critical Drainage Area.
- I do not uphold the complaint and have completed my investigation.
Investigator's decision on behalf of the Ombudsman