Kyle and Upper Ouse Internal Drainage Board (19 012 795)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 18 Nov 2020

The Ombudsman's final decision:

Summary: Mr X complained the Internal Drainage Board failed to investigate and take action in relation to an unconsented culvert on a neighbour’s land which has caused flooding and damage to his land and property. It also failed to respond to his complaint. The Internal Drainage Board was at fault. It failed to explain why it would not take action and delayed responding to the complaint. It has agreed to apologise to Mr X and pay him £250. It has also agreed to inspect the watercourse and explain to Mr X its decision on whether or not to take action.

The complaint

  1. Mr X complained the Internal Drainage Board (IDB) failed to investigate and take action in relation to an unconsented culvert on a neighbour’s land which has caused flooding and damage to his land and property. It also failed to respond to his complaint about this causing him frustration.

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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. Internal Drainage Boards came within the Ombudsman’s jurisdiction following the Commissions for Local Administration (Extension of Jurisdiction) Order 2004, which came into force on 1 April 2004.
  3. We cannot question whether an IDB’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)
  4. If we are satisfied with a IDB’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 considered the information supplied by Mr X’s representative and spoke with them on the telephone.
  2. I considered the IDB’s response to my enquiries.
  3. I gave Mr X and the IDB the opportunity to comment on a draft of this decision. I considered their comments in reaching a final decision.

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What I found

  1. 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.
  2. IDBs are independent public bodies responsible for managing water levels in low-lying areas. They are the land drainage authority within their districts and their functions include supervising land drainage and flood defence works on ordinary watercourses. They have powers under s25 of the Land Drainage Act 1991 to require works to maintain a proper flow of water in ordinary watercourses in internal drainage districts.
  3. S23 of the Land Drainage Act prohibits the obstruction of an ordinary watercourse without the consent of the drainage board concerned. It states:

“No person shall—

      1. erect any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction; or
      2. erect a culvert in an ordinary watercourse, or
      3. alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse

without the consent in writing of the drainage board concerned”.

  1. Under s24 of the Act the IDB may serve a notice on the person responsible requiring them to remove an unconsented obstruction. Failure to comply with the notice is an offence.
  2. S25 of the Act gives the IDB powers to serve a notice where the proper flow of an ordinary watercourse is impeded, setting out the works to be carried out to rectify the matter. The IDB can carry out the works themselves and recover expenses for doing so. Failure to comply with a notice is an offence. There is a right of appeal against a notice to the Magistrates’ Court.

The IDB complaints procedure

  1. The IDB’s formal complaints procedures says the complaint will be logged by the clerk to the board who will identify a senior person in the board to deal with the complaint. It will send an acknowledgement within two working days, telling the complainant who will be dealing with the complaint. It says within 15 working days of the date of the acknowledgement, that person will send a full response or progress report in writing. If the complainant remains dissatisfied it will arrange a further review at a more senior level in the board.
  2. If a complainant remains dissatisfied it sets out that they can complain to the Ombudsman.

What happened

  1. In January 2016 Mr X contacted the IDB regarding flooding to his property which he believed was caused by an unconsented culvert on a neighbour’s land.
  2. The IDB obtained a quote for an investigation into the drainage system. It referred to the pipe culvert Mr X had identified as the cause of flooding. It considered a hydraulic study was required to assess the impact of the pipe culvert and adjacent road bridges on flood mechanisms and flood levels within the watercourse. It quoted £2683 plus VAT for the work.
  3. The IDB wrote to Mr X’s representatives in February 2016. It said the landowner had agreed to remove cattle drinkers but would not remove the culvert. The landowner’s view was that the watercourse would discharge into his fields prior to impacting Mr X’s property. It considered the culvert had been installed for a significant amount of time and so the IDB was not in a position to serve a notice and it did not have the budget to undertake the quoted survey works.
  4. In February 2019 Mr X’s representatives contacted the IDB regarding Mr X’s concerns about the ongoing flooding risks. They said the landowner had not removed the cattle drinkers. They asked the IDB whether Mr X’s neighbour had consent to install the culvert and if not why the IDB had not taken action. They did not receive a response so wrote a further letter in June 2019. The IDB acknowledged this and said it would seek advice.
  5. Mr X’s representatives wrote to the IDB in July 2019 requesting a response. In August 2019 Mr X’s representatives wrote again. They asked the IDB to treat the letter as a formal complaint in line with the IDB’s complaints procedure.
  6. The IDB’s representatives wrote back asking if Mr X intended to take any legal action against his neighbour. Mr X’s representatives replied not at the present time.
  7. Mr X’s representatives contacted the IDB again in October 2019 requesting a response and enclosed a photograph to show flooding issues still existed. They wrote again to the representatives in 2019 requesting a response.
  8. In January 2020 the IDB responded to Mr X’s representatives. It said the flooding was caused by the direct actions of the neighbouring landowner. It asked for further information about the culvert’s location and when Mr X considered it was constructed. It said it carried out routine and regular maintenance where necessary for all watercourses under its control. It was not able to provide evidence of when it was last inspected. It confirmed it had not served a s25 notice on Mr X’s neighbour. It asked Mr X’s representatives to provide any evidence the flooding was due to an alleged breach of the IDB’s duties.
  9. Mr X’s representatives responded asking why the IDB had not taken action. They considered the IDB was fully aware of the culvert pipe. They said Mr X did not know when it was constructed and asked the IDB to confirm if permission was sought for the culvert pipe and if not, why the IDB had not taken action.
  10. The IDB responded in March 2020. It said it had no records to confirm when the culvert was constructed. It said it had not served a s23 notice [for an unconsented obstruction] as ‘it had no reason to do so’. It said ‘the inspection of the section of drainage only takes place as a matter of routine and is normally recorded by its operatives on a timesheet’. It had no record ‘of anything extraordinary that would lead it to take any action in connection with the area in question’. It said it was ‘not aware of any evidence to support the suggestion that it should have served a Section 25 notice’. [where the flow of water is impeded, setting out the works required to rectify the matter].
  11. Mr X’s representatives wrote to the IDB requesting an explanation of why the IDB considered it had no reason to serve a notice when the culvert pipe did not have consent. They also asked why it had not taken action under s25 when the watercourse was impeded by the culvert pipe, the cattle drinkers and additionally by the partial collapse of a nearby wooden bridge.
  12. Mr X remained unhappy and complained to the Ombudsman. In April 2020 we wrote to the IDB requesting further information about this complaint. We contacted it again in May and June 2020 requesting a response. In June 2020 it confirmed its legal representatives would respond. In July 2020 we contacted the IDB and its representatives by telephone who confirmed it would respond shortly. In late July 2020, as we had not received a response, we issued a witness summons to the IDB. We received a response to our enquiries in August 2020.
  13. In response to our enquiries the IDB set out that the culvert was installed some time ago. It had no records to show it received consent but the owner suggested they had approval to install it. It would need new evidence of flood risk before it considered action. It suggested it would be for Mr X to demonstrate this. It says it has no evidence to support the contention a s25 notice would be relevant.
  14. It said it undertakes annual maintenance of the watercourse which is recorded on employee timesheets.

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Findings

The culvert

  1. The law provides IDBs with a discretionary power, rather than a duty, to pursue enforcement action against breaches of the Land Drainage Act. This means that IDBs are not obliged to pursue enforcement action in all cases but can do so if they consider it is appropriate. It is for the IDB, not the Ombudsman, to decide whether or not to take enforcement action. The Ombudsman’s role is to consider whether there was fault in the processes and procedures followed by the IDB.
  2. The IDB decided it had no reason to serve a notice on Mr X’s neighbour. However, it has failed to clearly explain to Mr X and his representatives why and how it reached this decision. This is fault. That it ‘has no reason to do so’ is not an explanation of its reasoning. In response to my enquiries it referred to the age of the culvert pipe and the lack of evidence of recent flooding. It has not set this out in its responses to Mr X’s representative.
  3. The IDB says it inspects the watercourse annually. It has provided no evidence to show when the watercourse concerned was last inspected. This is fault. Given the particular concerns raised I would have expected it to have ensured the watercourse was inspected and a record made of the outcome.
  4. Any damage caused to Mr X’s property is a matter between Mr X and his neighbour. If Mr X believes his property has been damaged by the actions of his neighbour, it is open to him to seek legal advice and take the matter to court himself. However, the lack of inspection records or explanation of the IDBs decision making has caused Mr X frustration and uncertainty.
  5. In a draft of this decision I recommended the IDB review its procedures to ensure it kept records of when watercourses were inspected. In response the IDB confirmed inspections are recorded on employee time sheets and it has provided evidence of this. I am therefore satisfied the IDB does keep a record of inspections. The timesheets show which area was inspected, when and the equipment used. The IDB may wish to consider adding another column to the timesheet to include brief details of what was found and any issues or concerns identified.

Complaint response

  1. Mr X’s representative wrote to the IDB in February 2019. They did not receive an acknowledgement until June 2019, after they chased a response. In July 2019, the asked that the letter be treated as a formal complaint. Despite chasing a response in August and October 2019 they did not receive a response until January 2020.
  2. The IDB has a published complaints policy. It failed to comply with this. It delayed significantly in responding to Mr X’s representatives and in responding to the Ombudsman. This is fault. This caused Mr X frustration and inconvenience.

Agreed action

  1. Within one month of the date of the final decision on this complaint the IDB has agreed to:
    • Apologise to Mr X for the delay in responding to his complaint;
    • Pay Mr X £250 to acknowledge the frustration caused by the delays;
    • Inspect the watercourse concerned and document its findings; and
    • Following this clearly set out in writing to Mr X its views on whether or not to pursue any action under the Land Drainage Act and its reasons for reaching this decision.

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Final decision

  1. I have completed my investigation. There is evidence of fault causing injustice which the IDB has agreed to remedy

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Investigator's decision on behalf of the Ombudsman

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