Lincoln City Council (19 013 307)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 16 Oct 2020

The Ombudsman's final decision:

Summary: Miss C complains the Council failed to properly respond to her family’s reports of flooding from 2018 and to take effective action. Miss C says their business premises and garden has been damaged by flooding. The Ombudsman has found no fault by the Council in the way it dealt with the reports but a period it failed to keep to an agreed maintenance schedule was fault. The Ombudsman considers the actions the Council has already taken to complete the maintenance is enough to provide a suitable remedy.

The complaint

  1. The complainant, whom I shall refer to as Miss C, complains the Council has failed to properly respond to her family’s reports of flooding from 2018 and to take effective action. Miss C says because of the Council’s fault, their business premises and garden has been damaged by flooding.
  2. Miss C also complains the Council created the issues of flooding after it gave planning permission for a nearby housing development between 2008 and 2011 but did not ensure an adequate drainage connection during development which started in 2012.

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What I have investigated

  1. Miss C complains the Council has failed to properly respond to her family’s reports of flooding from 2018 and to take effective action. Miss C says because of the Council’s fault, their business premises and garden has been damaged by flooding.
  2. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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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. 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)
  4. 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)

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How I considered this complaint

  1. I read the papers provided by Miss C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss C after removing third party details. I have explained my draft decision to Miss C and the Council and provided an opportunity for comment.

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What I found

Background

  1. The Council granted planning permission for an adjacent housing development and accepted the advice of the statutory consultees at the time. The Council is satisfied the development was built in accordance with the approved plans and attached conditions.
  2. The Council says an underground drainage pipe was found after the new houses were built and an attempt was made to channel the water towards the French Drain system in the new housing development. The existence of this pipe came to light in November 2014 several years after development started following contact from another resident.
  3. There is a drain chamber on Miss C’s family’s land covered by a metal plate.  Another resident lifted this plate and Council officers noted the chamber and pipes running into and out of the chamber apparently towards the new housing development. This chamber is on private land and underground.
  4. By this time, the new houses were occupied and outside of the developer’s control.  Officers met with another resident and the relevant Internal Drainage Board to discuss connecting the chamber and the clay pipe into the French Drain.  The resident initially gave consent and the developer despite no longer owning the land agreed to carry out the work. However, the resident subsequently retracted consent because of concerns regarding the ongoing repair and maintenance responsibility.  The Council cannot compel the resident to accept the connection. 

Key events

  1. Miss C’s father contacted the Council in April 2018. The Council discussed the issues with Miss C’s father and visited the site with him in June. The Council visited the site again at the end of July. Miss C’s father telephoned the Council in August. The Council says it was unsuccessful in returning this call despite several attempts.
  2. Although I am satisfied the Council responded to the initial report without fault, it may have been preferable to provide a written response after the discussions and site meetings. This would have had the benefit of setting out the Council’s view of any responsibility and may have helped manage expectations.
  3. Miss C made a formal complaint in September 2019. The Council responded in October. The Council noted it had investigated the same issue during 2018 after contact from Miss C’s father and another resident. As part of those investigations the Council exposed and rodded the drainage pipe which appeared to extend to the French drain system on the new development. However, subsequent investigations by the water company including sending a camera along the French drain pipe found no obvious sign of connection into the perforated pipe. The Council suggested the drainage pipe may only extend to the gravel channel of the French drain rather than into the perforated pipe itself. The Council confirmed the new housing development had been built during 2012 and the Council considered it was built in accordance with the approved plans and attached conditions. The Council confirmed there was no action it could take under planning legislation. The Council confirmed it inspected and maintained the ditches and culverts on its land but the overflowing drain was not on land it owned or maintained. However, the Council accepted there were issues with standing water and it would continue to try and find a solution if a simple affordable solution could be found.
  4. Miss C says she sought to escalate the complaint by email after receiving the Council’s initial response in October. The Council says it did not receive this email. Without a copy of the email it is not possible to say if this was due to some fault on the Council’s part. I note that following a telephone call to escalate the complaint the Council provided a response in November. In the circumstances, I do not consider further investigation on this point is warranted.
  5. In its reply, the Council said it had visited the site to unblock the drain which had improved the flow but considered further work was needed to lift and relay a pipe. The Council explained that although it did not consider it had any responsibility to act it had considered developing an improved drainage system for the area and what permissions may be required. However, the Council confirmed there was not currently any budget to do so. This would remain under review.
  6. The Council says it has not arranged for a camera survey of the pipe that runs under the allotment track as it was enough at the time to establish the rod was able to extend along the pipe towards the French drain, suggesting it was clear of obstruction and going towards the French drain. The Council highlights that the French drain is not just a pipe but rather a channel consisting of a perforated pipe (to allow water to permeate into the pipe), surrounded by a gravel bed (allowing greater percolation than the solid soil, to enable any ground water to pass into and along the gravel bed or permeate the pipe), surrounded by material to stop larger soil particles entering the system. It is designed to channel/direct water along its course with the expectation that as long as ground water can find its way into the gravel bed, the French drain will deal with it.
  7. The Council provided information to the Ombudsman in January 2020. The Council explained it was not aware until November 2014 that the drain Miss C’s father refers to had a pipe that terminated before the boundary of the developer’s site and as it was not visible during construction this was not connected to the French drain. The Council also confirmed it had completed the unblocking work and checked the water was flowing freely through the pipe. However, it intended to complete the second element which was to change the current pipe for a larger one in the spring.
  8. The Council has further explained that it attended the site in November 2019 to try and establish a flow through the pipe by rodding it and after this work confirmed water was coming through although not at high volume. The Council considered more extensive work was required to improve the flow which was to lift and re-lay the pipe under the track. The Council issued instructions for this work and contractors attended site in November and completed a camera survey. This identified that the placement of a fence post had damaged the pipe and was causing an obstruction. The Council contractors removed the broken piece of pipe and replaced it with a rubber pipe to connect the gap. The Council says the suggestion of enlarging the pipe was considered before it was aware the pipe was obstructed by the fence post. As the obstruction has now been removed the Council considers enlarging the pipe is not required. The relevant Internal Drainage Board has confirmed it is happy with the repair and advised against enlarging the pipe.
  9. The Council has confirmed it has improved drainage on its own land and it has not done anything on its land to prevent the passage of water. The Council does not consider the water causing the problem is coming from Council owned land. The Council notes the unprecedented levels of rainfall over recent years and says the surrounding water table is high with pockets of low lying land in the area which is contributing to the issue.
  10. The Council says a neighbouring property has connected their own pipe to the chamber belonging to Miss C’s family to channel the water entering that chamber to the other drain that is connected to the French Drain belonging to the resident in the new development thereby bypassing the pipe which is not connected.  It is not known yet whether this action has improved the situation.
  11. The Council previously completed works to a ditch and culvert on its old allotment site during 2016/17 and agreed a maintenance schedule for the ditch and culvert taking into account comments from the Drainage Board at the time. The Council has confirmed the Drainage Board’s advice was that the Council must keep the ditch free of litter and objects that may block it, ensure the ditch kept its shape and ensure the outfall pipe under the road was free flowing. The Council confirmed to residents that it would inspect the ditch annually at the end of the summer after the growing season in readiness for the wetter months and would inspect the outfall every 6 months/twice a year. The Council has confirmed this did not take place from April 2018 due to a change in staffing. This is fault.
  12. The Council says the issue became apparent following reports of standing water in October 2019. The Council arranged the vegetation to be cut back after the water had subsided and submitted a works order to its contractor in March 2020. The Council has confirmed there is an ongoing work order to strim out the ditch four times a year in April, June, August and October.
  13. The Council does not consider this dyke system which the Council maintains is the issue reported by Miss C and her family as these have been about the chamber in their garden overflowing and flooding their outbuilding. The Council says the water that comes into this chamber does not come from the Council dykes but appears to be piped into the chamber from further up the road. The Council says it has not been possible to identify where this water comes from but it is likely from a network of pipes from several properties along the road which was installed informally by various occupants of the land some decades ago. The Council notes it is not shown on any drawings held by the relevant drainage authorities.
  14. Based on the information provided, I am satisfied the Council has properly responded to Miss C’s family’s reports. The Council has visited the site and arranged work to try and alleviate the issues being experienced by Miss C and her family. This is despite the Council providing cogent reasons why it does not consider it is responsible for the particular problems of flooding being experienced.
  15. Miss C has sought a meeting between her father and the Council at the site to further discuss the issues. The Council has confirmed to the Ombudsman it is happy to arrange such a meeting although it makes clear it is not responsible for managing private land. The Ombudsman would welcome this action.
  16. There was fault in the Council failing to keep to an agreed maintenance schedule for a ditch on its land. However, I do not consider I can reasonably say this has caused Miss C and her family an injustice as it was not the subject of their reports. The Council has also provided cogent reasons for its view that the water from its ditch is not the source of the flooding being reported. I also note the Council has now completed the necessary maintenance and arranged for this to be repeated four times each year going forward. In the circumstances, I do not consider a further remedy is required above the action the Council has already taken.

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Final decision

  1. I have completed my investigation as although I have found fault by the Council, I do not consider it requires a remedy above the action the Council has already taken.

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Parts of the complaint that I did not investigate

  1. I have not investigated the part of the complaint that the Council created the issues of flooding after it gave planning permission for a nearby housing development but did not ensure an adequate drainage connection at the time.
  2. This is because the relevant planning consideration was between 2008 and 2011 and construction of the development started in 2012. Miss C contacted the Ombudsman in November 2019. A complaint now about the original planning consideration and development is caught by the restriction outlined at paragraph 8 above.
  3. As the matter was ongoing, I exercised the discretion available to me to investigate events from 2018.

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Investigator's decision on behalf of the Ombudsman

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