Leicestershire County Council (19 011 721)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 30 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complains about the way the Council dealt with concerns she raised about flooding around her property. She also raised concerns about additional risk from the development of sports pitches affecting a watercourse. We found there was fault that warrants a remedy.

The complaint

  1. Mrs X complains the Council has not acted correctly as the lead local flood authority (LLFA).
  • Mrs X says it has not properly investigated her concerns of flooding to her garden.
  • A railway culvert pipe which receives all of the water is smaller than the pipes sending water to it, so it cannot cope with the current volume of water; hence the flooding around her property, but the LLFA is taking no action about this.
  • The Council has not ensured that run-off water from a development does not increase the risk of flooding elsewhere, as it is since development of a sports pitch that she is experiencing flooding to her garden.
  • There has been a change to an ordinary watercourse without consent, the ditches around the sports pitches were attached to an existing ordinary watercourse, but the Council has taken no action.
  • At one time the Council, along with Melton Borough Council, said it would take action to prevent the water run off downstream to her property, but has decided against that now without explaining why.
  1. The Council will not answer her queries, it is very stressful frustrating and time consuming. The land around Mrs X’s home floods quite regularly in heavy rain, and her garage has flooded; it is a constant worry that eventually her house and garden could also flood, especially for her autistic son.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mrs X and considered correspondence and documents that she provided. I asked the Council for information and I considered its response to the complaint.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Relevant Legislation

Planning Legislation

  1. The National Planning Policy Framework (NPPF) 2012 was in place at the time of the planning decisions that are relevant to Mrs X’s complaint. Paragraph 103 required planning authorities to ensure flood risk was not increased elsewhere as a result of development. It noted that a Flood Risk Assessment (FRA) was required.
  2. The Town and Country Planning (Development Management Procedure) (England) Order 2010 states the Environment Agency were a Statutory Consultee.
  3. The Flood and Water Management Act 2010 introduced Lead Local Flood Authorities (LLFAs) in 2010. LLFAs were not statutory planning consultees until changes to planning legislation in 2015. However, the Flood and Water Management Act 2010 also defined Borough Councils as “Risk Management Authorities”. DEFRA guidance for Risk Management Authorities from 2011 stated Risk Management Authorities should contribute by basing decisions on a sound understanding of interconnectivity of land drainage network of culverts, ordinary water courses, sewers and highway drainage to allow a better assessment of the impact of development on the drainage network.
  4. The Flood and Water Management Act also encourages authorities to work together in local partnerships and to be open and transparent about the costs and benefits of different ways of managing [flood] risk.

Land Drainage Act 1991

  1. Section 23 of the Land Drainage Act 1991 states a person must have consent of the relevant drainage board to erect “any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction”. They also need consent to erect or alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse. I have referred to this as Ordinary Watercourse Consent (OWC) in this statement.
  2. Section 25 of the Act states that a drainage board has the power to serve a notice to rectify any issue which impedes the proper flow of water along a watercourse. Notice may be served to any person who has responsibility for the watercourse, as defined in the Act.
  3. The County Council as the Local Lead Flood Authority (LLFA) acts as the drainage board and is the responsible body for issuing consent under Section 23 of the Land Drainage Act and for enforcement of contraventions of Section 24 and 25 of the Act.

DEFRA/EA Technical Report W5-074/A/TR1 & Rainfall runoff management for developments (SC030219)

  1. This is guidance issued by Defra and the Environment Agency. The principles of the guidance are that the volumes of water discharged from developments should approximate to the greenfield run off rates. The objective is for this guidance to assist developers to conform to the NPPF which requires development to be ‘safe, without increasing flood risk elsewhere’ and where possible to ‘reduce flood risk overall’.
  2. The guidance states the EA will normally require that the developed rate of water runoff to a watercourse should be no greater than the undeveloped rate for the same circumstances based on “QBAR”. QBAR being a flow rate measurement of the runoff performance of a site in its natural (greenfield) state.

Background

  1. Mrs X has lived in her property since 2010. She lives near to a railway line. Behind Mrs X’s house is a watercourse. The watercourse runs behind her back garden, and through a culvert under the railway line.
  2. Mrs X also has the use of a small area of land behind her garden. This is on the other side of the watercourse. I understand Mrs X rents or has agreed use of this land from the landowner.
  3. Between 2010 and 2016 Mrs X says there were no problems with flooding in the immediate area around her property. Her house has not flooded. However, the land she rents and parts of her garden flooded in 2016. I understand her garage flooded on one occasion in the past but her house has never been flooded.

Planning Permission for the development of sports pitches

  1. In 2013 the County Council submitted an outline planning application to the Borough Council to develop a site which it owned, upstream of Mrs X’s property. This was to build a mixture of housing and sports pitches.
  2. A flood risk assessment was submitted with the application and the Borough Council consulted the Environment Agency.
  3. The Borough Council, acting as the Planning Authority, approved the development subject to conditions. Condition three stipulated the developer (the County Council) had to submit full details of new playing fields for approval in writing. It required these sports facilities to be laid out and constructed before the housing element could be built.
  4. The County Council confirmed it had done most of the earthworks required to create the sports pitches in 2013/14. It described the earthworks as significant, due to the topography of the field. The works were done before the County Council submitted plans for approval to the Borough Council.
  5. In 2015 the County Council sold the development site to the Borough Council.
  6. In September 2016 the County Council submitted detailed plans for the sports pitches and an application to discharge condition three of the planning permission. The application noted the change of site ownership but stated the County Council were required to develop the sports pitches. So, although no longer the site owner, the County Council was acting as the developer. The application form acknowledged that work had already started, but it stated it began on 3 August 2015.
  7. The County Council’s plans showed changes in site levels and that drainage pipes would be installed throughout the site. The pipes led to shallow drainage ditches/gullies and into a ‘basin’ on the site. The plans then showed an outflow pipe from the basin. This led to an “existing ditch”. The ditch led to an existing pond. This was connected to the watercourse that runs down to and behind Mrs X’s property.
  8. On 10 November 2016, the Borough Council approved the detailed drainage plans put forward by the County Council to discharge condition three. The County Council later told the Borough that the site had already been laid out and work had been completed to change the levels on the site. So, the outstanding works related to the installation of drainage, seeding the pitches and landscaping.
  9. The Borough Council’s decision to discharge condition three and approve the details of the sports pitches was taken by planning officers.
  10. There is no statutory requirement for consultation with the public or other bodies when discharging planning conditions. But, while there was no statutory requirement to consult with the LLFA on the original planning application, LLFAs became statutory consultees in 2015. In addition, guidance issued in 2011 encouraged partnership working and the NPPF required that planning decisions took account of how development may affect flood risk elsewhere.
  11. In addition, the proposed works involved the discharge of water from the drainage system on the site into a watercourse. This required OWC under Section 23 of the Land Drainage Act.
  12. On 24 November 2016 Mrs X contacted a planning officer to express concern about flooding she had experienced in June and November 2016. She referenced the discharge of conditions application. She says she received no reply.
  13. The County Council began work to install drainage and complete the sports pitch development in February 2017. Neither the Borough Council (as the landowner), nor the County Council (in its capacity as the developer) made an application for OWC to the County Council in its capacity as LLFA. Nor were the LLFA consulted about the works proposed.
  14. In May 2017 Mrs X contacted the County Council’s estates team to question the drainage scheme the Council was installing. She noted she had already been in correspondence about problems with the watercourse and a blocked culvert under the railway line. She stated this still needed major works to clear it. She questioned the new ditch installed for the sports pitches and what checks the Council had done to ensure the watercourse behind her home could cope with the additional water. She expressed concern the work to the sports pitches could make matters worse.
  15. The County Council estates team told her the planning applications that applied. It stated it had developed the pitches, but the ownership of the land had now passed to the Borough Council.
  16. Mrs X also contacted the Borough Council in May 2017. In her email Mrs X cited her earlier contact about flooding problems in June and November 2016. She referenced the discharge of condition three and expressed concern about more an increased risk of flooding. The Borough Council referred to this contact in its response to our enquiries. It stated it was of relevance because work on the pitches started in February 2017 and had been completed in Autumn 2017. So, it suggested to us the works on site could not have been the cause. These comments failed to take account of the significant earthworks the County Council carried out on the site to alter the topography in 2013/2014 before plans were submitted.
  17. In July 2017 a flood prevention officer at the County Council told Mrs X “should the applicants wish to discharge directly into the Ordinary Watercourse, they will need to apply for Ordinary Watercourse Consent”. The officer stated a member of staff from the LLFA would consider any such application.
  18. Mrs X says she asked a planning officer at the Borough Council to follow up OWC but she did not hear back.
  19. In January 2018 Mrs X complained to the Borough Council about the continued flooding problem and lack of OWC for the sports pitch drainage works.
  20. In February 2018 the County Council’s Flood Risk Management Team stated they were engaging with the Borough Council about the issue. The Borough Council stated it was liaising with the County Council and it was aware that Mrs X was receiving regular updates from them about relieving blockages around the railway culvert which would improve the flow of water. However, it could not comment on potentially unauthorised works.
  21. Mrs X was dissatisfied with the Borough Council’s response. She had been told by the County Council that no application for OWC had been submitted. She was unhappy the matter was still outstanding.
  22. The Council referred Mrs X’s complaint to the Director of Planning, (referred to in this report as Officer A). He acknowledged the complaint on 27 March and told Mrs X he was looking into it. He stated obtaining OWC was the responsibility of the developer and the LLFA oversaw and enforced OWC rather than the Borough Council. He stated he was meeting relevant officers on 28 March and would update her afterwards.
  23. The following day Officer A met officers from the County Council. No notes or minutes exist to show what was discussed. However, Officer A told Mrs X the meeting was positive. He stated there was “a shared understanding by all concerned that drainage arrangements installed for the playing pitches contributes to the flow ‘downstream’ in the drainage system, which is the same system that causes the problems in the vicinity of your home. It was agreed measures are required to improve the system so that it does not discharge at a rate higher than it would in an undeveloped state and all present agreed that we would work together to provide a solution. To this end it was agreed to commission engineers to devise a scheme to examine the drainage system that has been installed and devise measure(s) for its improved functioning. Without pre-empting what this may comprise, it is likely to comprise a means of attenuation and /or flow control”
  24. Mrs X was pleased with the intention to rectify the problem and to limit the discharge of water to no higher than the site’s undeveloped state.
  25. In August 2018 Officer A told Mrs X the Council had received the consultant’s report and it was considering it.
  26. The consultant’s report noted the existing drainage network taking water to a basin. It stated the watercourse behind Mrs X’s home was the only feasible option for dealing with surface water run-off from the site. The report stated any discharge into a watercourse had to be in accord with DEFRA/Environment Agency guidance in ‘Technical Report W5-074/A/TR/1 Preliminary Rainfall Runoff Management for Developments’. This required that discharged flows to be restricted ’QBAR’ for all storm events. They calculated QBAR as 12.6 litres per second for the site.
  27. The consultants stated “The overall surface water strategy for the site is to prevent the sports pitches from becoming waterlogged. The surface water discharge rate has to be restricted to the existing greenfield run off rate to minimise the impact on the local water courses and to ensure the proposed drainage system does not increase flood risk downstream.”
  28. The report goes on to recommend a strategy and works for achieving a run-off rate of 12.3 l/s. These included the redesign of the existing basin so that the flow of water is reduced to a greenfield run off rate. It stated “This will be achieved using an orifice flow control. Whereas the original drainage layout had an uncontrolled discharge that ran openly over the adjacent land, there will now be a pipe run that will carry the surface water to the head of the existing watercourse approximately 60m to the east.”
  29. Mrs X told us that she had witnessed water pouring out of the drainage system from all around the outside of the pipe that was there, not just coming out of the pipe itself, so she doubted the existing scheme’s effectiveness.
  30. In February 2019 Mrs X chased for a progress report.
  31. I understand it was not until March 2019 that the County Council directly addressed the issue of whether the sports pitch work needed OWC. An officer, Officer B, explained in effect, the final outfall could require consent if it extended out into the watercourse and had potential to block or obstruct flow. However, the Council had assessed the outfall pipe and it found it did not affect the flow. For this reason, it did not require consent. He clarified the Land Drainage Act did not regulate additional water added to a watercourse, only whether new or altered structures obstructed flow. The Council acknowledged it was unfortunate the 2017 email gave the wrong explanation and impression of OWC.
  32. In March 2019 Mrs X reported that a digger had been seen installing a blue pipe at the side of the housing part of the site. She asked if this pipe also had consent. Officer A referred Mrs X’s query to the County Council’s Flood Risk Team.
  33. On 10 April, Officer B told Mrs X “the team at LCC are finalising the designs for the Sports Pitches. Their plan is to get the designs sent over to Melton Borough Council within the next few weeks. As stated before it is Melton Borough Council who will make the final decisions on whether the planned actions are acceptable and whether the remedial works get approval”.
  34. The County Council told me that from June 2019 it began assessing the drainage system installed for the sports pitches. In July 2019 officers from the Borough Council and County Council met on the sports pitch site to discuss the situation. They could not find the main attenuation basin outflow pipe. This was “due to overgrowth”. It was also noted that the blue pipe installed alongside the housing site would be a planning enforcement matter to investigate.
  35. The notes stated those present discussed the remedial designs by the consultants, and whose responsibility the works would be if actioned. Officer B commented whether or not to do the works was not a decision within the remit of the LLFA. It remained the Borough Council’s decision as the Planning Enforcement Authority. However, Officer B agreed to “use the information gathered on site and from other sources to allow the LLFA to assess the unconsented outfall.” Once this was done, Officer A would contact Mrs X to provide a ‘collaborative response’.
  36. On 2 September 2019, Officer A told Mrs X the Council had decided not to do any works to the sports pitches. In an email he stated:
  37. “It was concluded that the technical design of the works and the physical infrastructure of the installed drainage scheme which includes drainage under the pitches, alongside the pitches and the development of the attenuation pond are satisfactory. It is considered that the works to install the pitch drainage, the drainage ditches either side of the new sports pitches along with the development of the attenuation pond on the site are sufficient in their built form to suitably alleviate any drainage issues  on site and would not exacerbate any drainage further along the network. Therefore, there are no plans at present to undertake the proposed changes to the system as proposed by [the consultants] in 2018, these proposals have been kept on file for future reference and consideration if required.”
  38. In correspondence with Mrs X about the issue Officer B stated the existing pipe installed would provide a bottleneck that would roughly restrict the flow to between 10 l/s and 12.6 ls, depending on the exact pipe size and slope. He stated “This is admittedly a crude solution but so long as it works in its intended role we would not be able to take further action…”
  39. The Council clarified that it had not witnessed water spilling from around the pipe as described by Mrs X, so this had not been taken account of in its calculations.
  40. In response to our enquiries the County Council provided us with a Technical Note to explain the Council’s rationale for taking no further action (as LLFA) against the Borough Council (as landowners). Officer B explained the method used and the results of the calculations. He stated he had calculated the current rate of discharge to be 11.4 l/s. This was below QBAR. The Council noted that as with all calculations, there were margins for error. The Council indicated it had allowed (positively) for some variance in its calculations. Officer B stated he was sufficiently confident that any margin for error would still produce a result below QBAR.
  41. Following further correspondence with Officer B, and as Officer A had confirmed the Borough Council did not intend to take action, Mrs X made a complaint to us.

Concerns about the watercourse in general/Culvert Clearance

  1. As well as Mrs X’s concerns about additional water added to the watercourse from the sports pitches, she raised concerns about the watercourse itself in the area behind her home. She noted issues with a culvert that takes water beneath the railway line. Ihave not set out the correspondence between Mrs X and the two councils, but Ihave considered the concerns raised and the actions taken and summarised this below.
  2. There is evidence that during May/June 2017, the County Council’s Flood Risk Management Team did take actions to address Mrs X’s concerns. They;
    • Visited the site to inspect the watercourse in May 2017. They found that as the watercourse approached Mrs X’s property it lost its channel and a trench needed to be dug to allow water to flow through to the culvert.
    • They wrote to all the properties and landowners who had riparian ownership of the bank/watercourse. They explained they had a responsibility to keep the watercourse clear where it passes through their land. This included Mrs X herself. I am aware she dug out material to clear her section.
    • The team notified Mrs X that the land she had use of, part of a field behind her property (the other side of the watercourse) was in a high-risk flood zone. They wrote to the land agent for this field and requested that they cleared their side of the watercourse.
    • They also liaised with Seven Trent about work to the rear of a site adjacent to Mrs X, and with Network Rail and sent them enforcement letters. The Council also arranged to clear highway gullies.
  3. In July 2017 the County Council advised the Borough Council that a key issue was a blocked culvert under the railway line. They explained Railtrack’s view that the Borough Council was responsible for maintaining it, following a legal agreement made in 1996.
  4. The County Council took the lead on group working with the other bodies involved to achieve a permanent solution to this. They first met in October 2017 and they agreed to co-ordinate actions and communications.
  5. The Borough Council’s response to Mrs X’s complaint from January 2018 acknowledged the issues with the watercourse and blockages. It stated it was planning remedial work but the issue was not straightforward to resolve. It involved the jurisdictions of at least four different organisations. There were also issues of land ownership to resolve. It also said it encountered delays because it needed a permit from Natural England to clear the ditches. This was because the site was within a Site of Special Scientific Interest (SSSI). I also note changes in contractors also caused delays.
  6. In February Mrs X acknowledged the update about this work and was happy that she had received communication and updates about what was happening. She stated she was prepared to wait for the work to happen.
  7. Network Rail carried out work to clear out the area close to the railway line. Towards the end of 2018 Mrs X was chasing the Council for the completion of this work and removal of the spoil. In an update October 2018 the Borough Council stated a remaining pile of spoil would be removed within a week. Subsequent correspondence indicated the Council had not done this by November. However, the Council completed works to improve the watercourse, to clear the culvert and clear the area around the railway line in 2019.

Analysis

  1. I have considered the County Council’s involvement in the issues that Mrs X complains of in two key areas. The first is its involvement in the development of sports pitches and the second is its general response to concerns from Mrs X about the flooding of her property and the concerns she raised about the capacity of a nearby railway culvert.

Sports Pitches

  1. I found no fault in the way the original 2013 planning decision was decided by the Borough Council. However, the works to the sports pitches were controlled by condition. Condition three required details of the works to be submitted for approval in writing and then carried out before other work could start.
  2. When the Borough Council received details of the drainage scheme for the sports pitches in 2016, the LLFA was not consulted. LLFAs were not statutory consultees at that time of the original application but they were by 2016. Councils are not under a legal obligation to consult when discharging conditions on a planning application. However, to fulfil its responsibilities as a Risk Management Authority, and to understand the suitability of the work proposed, I would have expected the Borough Council to consult the LLFA to get an expert opinion. It is difficult to see how the Borough Council’s planning officers satisfied themselves about the suitability of the work, and any likely impact to the increase of flood risk elsewhere without doing so. The Borough Council later relied heavily on input from the LLFA to determine what work was appropriate for the site when responding to queries from Mrs X about the scheme and the work carried out.
  3. I found the failure to consult the LLFA when discharging condition three was fault by the Borough Council in the circumstances.
  4. However, I also note the County Council’s estates team carried out work on the in 2013/14 site before it submitted the detailed plans required by planning condition three. This appears to have been in breach of the planning permission for the site. It is not clear whether the Borough Council was aware of this at the time the work was done, so enforcement action was not a considered. Given the circumstances of the complaint and the events that followed, this work did not, itself cause significant injustice in my view. However, it was poor practice by the County Council to conduct work ahead of gaining approval for its plans.

Ordinary Watercourse Consent

  1. The ownership of land changed to the Borough Council before the detailed drainage work was actually carried out. When the County Council carried out the drainage work, acting as the developer, it should have been subject to an application for OWC but this was not submitted.
  2. The Borough Council has responsibility to ensure work carried out on its land had OWC if this was required. Had it consulted the County Council, as LLFA when discharging condition three, the issue of OWC would most likely have become apparent.
  3. However, I found it was particularly poor practice that OWC was not obtained by the County Council given the County Council was acting as developer, and it regulated OWC itself. It would have been good practice for the County Council to seek advice from its own Flood Risk Management Team about the suitability of the proposed work in any event given it involved a watercourse. So, the County Council shares some of the responsibility for the works not having been reviewed by the Flood Risk Management team, as LLFA.
  4. Although the failure to consider OWC was poor, the central issue in this case is adding water to the watercourse, not a potential obstruction, so the main impact of the failures around OWC were the confusion this caused and miscommunication with Mrs X. Mrs X was given the impression (by the County Council) in July 2017 that any additional water being discharged into a watercourse required OWC. This naturally led to her pursuing why no consent had been obtained. She believed the additional water required consent – and this was her main concern. She raised this on numerous occasions. It took until March 2019 for the County Council to provide an explanation. The lack of clarity and delayed responses exacerbated the initial misleading email. This was fault by the County Council and it prompted a complaint in early 2018. It was understandably frustrating and concerning for Mrs X.

Raised Expectations

  1. Officer A undertook to deal with Mrs X’s complaint on behalf of the Borough Council and respond to the concerns about the sports pitches. Given the Borough Council is the landowner and the planning authority this seems appropriate. In my view it has primary responsibility for the works.
  2. It is evident that the Borough Council liaised with Officer B and the County Council’s Flood Risk Management Team about proposals for further work to the sports pitches, but ultimately the decision about what works it will do on its land was for the Borough Council to take.
  3. In response to Mrs X’s concerns, the Borough Council (on behalf of both councils), agreed measures were required to improve the system so that it does not discharge at a rate higher than it would in an undeveloped state. It is implicit in this statement that, in March 2018 when they agreed this, they did not consider the discharge into the watercourse from the site was limited the greenfield rate. They committed to work together to provide a solution and agreed to commission engineers.
  4. Neither council has provided a satisfactory explanation of why, in September 2019, the same system is adequate and why it is now considered the site discharges at a rate lower than an undeveloped state.
  5. I should say at this point, it is not fault for a council to change is view on a given matter. There are circumstances when, for good reasons, councils may decide against a course of action it had intended to take previously. However, they must be able to provide cogent reasons for doing so. I have not found good reasons in this case.
  6. I found the reasoning given for the change of position confusing and contradictory. For these reasons I consider the handling of the issue does represent fault by the Borough Council. I have commented on how I reached this view below.
  7. The Borough Council relied on information from the County Council that suggested the system was now adequate. The County Council suggested the consultants produced their report on an assumption that the outflow needed work to restrict it to greenfield rates. They say the consultants did not assess the actual flow on site and neither had the County or Borough Council prior to engaging them.
  8. Firstly, it is surprising that the two councils would commission work to resolve a problem, if there was no clarity about whether a problem existed. Secondly, this statement also seems to contradict what Mrs X was told would happen by the Borough Council. It told her the consultants would examine the drainage system that has been installed and devise measure(s) for its improved functioning. She was not told they would simply design a better functioning system.
  9. Correspondence obtained by Mrs X between Officer A and Officer B also stated clearly that the works on the site had been found to be substandard and needed works to bring them up to standard.
  10. While I respect the assessment of the discharge flow rate completed by the LLFA in 2019, it acknowledges this does not take account of any flow of water from around the pipe (as well as through it) that Mrs X has witnessed. The County Council stated it had not witnessed this. Their assessment was based on the size and of pipe installed, and what the original contractors told them about the gradient etc, rather than the situation on the ground. The LLFA itself referred to the work already completed as crude and the consultants report states “the original drainage layout had an uncontrolled discharge that ran openly over the adjacent land”. It proposed “a pipe run that will carry the surface water to the head of the existing watercourse”.
  11. Quite apart from finding fault in the reasoning for the change of position by the Borough Council, it also took from March 2018 to September 2019 for the Borough Council to decide that no action would be taken. This was after having led Mrs X to expect work would be done. This was a significant delay. The delay too was fault.
  12. Officer A from the Borough Council acted as a contact point with Mrs X about her complaints and he did liaise with officers at the County Council and contact Mrs X. However, there was also a lack of ownership for the issues Mrs X was raising. The Borough Council’s response to her complaint stated it was the County Council who commissioned and paid for the consultant’s report. It also suggested the works could not have been responsible for the flooding, because work started in February 2017. But, this statement failed to take account of the earthworks carried out before February 2017.
  13. The County Council’s LLFA officers have been those largely involved in the response to the complaint. They clearly believe the decisions about what work should be done was for the Borough Council. As the landowner, and the planning authority, I consider it is the primary responsibility of the Borough Council to address the issues with the work. However, If the system installed is not suitable, it would be for the Borough Council to address these with the developer (the County Council’s estates team) who acted on its behalf, if it considers that appropriate.
  14. Because there are numerous questions over the way the Borough Council reached its decision not to take action I have recommend this is revisited and that a further assessment is carried out by an independent consultant who has not previously worked on the site. They should examine the situation on site, determine the current discharge rate and determine whether the consultants recommendations from August 2018 are required (or another scheme is possible) to limit the discharge of the site in line with the DEFRA guidance, by reducing it to greenfield rates. The Borough Council will be responsible for arranging this work, with technical assistance form the LLFA as required. It is of course open to the Borough Council to discuss with the County Council how the cost of this assessment and of any works deemed necessary might be shared between the Borough and County Councils.

Investigation and actions regarding flooding generally

  1. There is evidence that Mrs X raised general concerns about the build up of flood water in the area around the railway line and her property.
  2. I found the actions taken by the County Council’s flood risk management team were appropriate and proportionate. They contacted land owners and residents who had riparian responsibilities to make their responsibilities clear. They also liaised with other bodies, most notably Network Rail, Severn Trent and the Highways department to agree a collective effort to resolve what were genuine problems and obstruction to the flow. When it became clear that the Borough Council had responsibility for maintaining the culvert, the County Council brought in relevant Borough Council officers to deal with this.
  3. I am conscious that it took a long time, from 2017 to 2019 for the situation to be significantly improved and works to be completed. However, on balance I do not consider the time taken can solely be attributed to the Borough or County Councils. The situation was complex and involved various parties. So, I have not found that the delay was fault in regards the time period the work took.

Impact on Mrs X

  1. I have found fault in the way both Councils have acted in relation to Mrs X’s complaints about the sports pitches. This certainly put her to time and trouble of continuing to pursue her complaint. Some of this could have been avoided if the fault had not occurred. However, it should be recognised that the main impact of flooding Mrs X experiences is on the land that she has agreed use of from another landowner on the other side of the watercourse. I consider the injustice to Mrs X is limited because it was not her house or garden proper which has suffered flooding. That said, it was clearly frustrating for Mrs X and she was obviously fearful about the potential for further flooding and for it to worsen.
  2. To make it clear what remedy I expect to be provided by each council, I have, unusually, set out the actions required of both councils in both statements of complaint.

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Agreed action

  1. Within three months of our final decision:
  2. The Borough Council agreed to arrange for a re-assessment of the sports pitch drainage by an independent consultant (who has not previously worked on the site). They should examine the situation on site, determine the current discharge rate and decide whether the consultant’s recommendations from August 2018 are required (or another scheme is recommended) to limit the discharge of water from the site. The Borough Council will be responsible for arranging this work, with technical assistance from the LLFA as required. The Borough Council agreed to meet 50% of the costs of the reassessment. The County Council has agreed to meet the other 50%.
  3. The Borough Council agreed to write to Mrs X within four weeks of receiving and considering the report from the independent assessors. The Council should explain what the reassessment found and confirm what (if any) action the reassessment requires. They should confirm when this will be carried out. As the landowner, the responsibility for carrying out any works recommended by the consultants, is the responsibility the Borough Council. However, it is open to the Borough Council to discuss with the County Council’s estates team how it may share the cost of any necessary works between the Borough and County Councils.
  4. The Borough Council agreed to pay Mrs X £250 to recognise the time trouble and frustration and stress caused by the failure to properly determine the discharge of conditions application and the resulting issues when dealing with Mrs X’s complaints about the drainage system installed.
  5. The Borough Council agreed to review its policy for consultation on discharge of conditions applications involving drainage and discharge into a watercourse. It should confirm to us what specific changes of practice have occurred as a result of this complaint.
  6. The County Council agreed to pay Mrs X £250. This is to recognise the failure to properly address her queries about Ordinary Watercourse Consent and the delay in making the situation clear and the stress and frustration that this caused. It also reflects that the part the County Council played in problems with the sports pitch works. It missed the opportunity, as the developer of the sports pitches to verify the suitability of the sports pitch work before it was carried out.
  7. The County Council’s Flood Risk Management Team should provide advice and guidance to the Borough Council in achieving the re-assessment I refer to in paragraph 95 above.

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Final decision

  1. There was fault. I have completed my investigation and closed my file on the basis the agreed actions are taken by both Councils.

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Investigator's decision on behalf of the Ombudsman

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