Northumberland County Council (19 015 012)

Category : Environment and regulation > Drainage

Decision : Not upheld

Decision date : 13 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s investigation into her neighbour’s defective drainage system. The Ombudsman found no evidence of fault.

The complaint

  1. Mrs X complained about the Council’s investigation into her neighbour, the Y’s, drainage system, which she said was defective and caused water accumulation and solid effluent discharge on her land.
  2. She said the Council’s investigation was biased in favour of the Y’s and she complained about the conduct of the lead investigator. Mrs X said some defects remain, despite recent maintenance works.
  3. Mrs X has been put to financial expense through surveyors and solicitors’ fees. She has also been put to time and trouble in monitoring the discharge site and submitting evidence to the Council seeking action.

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The Ombudsman’s role and powers

  1. 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)
  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. As part of the investigation I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • Building Act 1984.
    • Public Health Act 1961 (which amended the Public Health Act 1936).
    • Environmental Protection Act 1990.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

  1. Councils must ensure properties have adequate foul water drainage and treatment.
  2. Section 59 of the Building Act 1984 gives the Council powers to act where it finds satisfactory provision for drainage from a building has not been made, or that a private sewer is insufficient, or prejudicial to health or a nuisance.
  3. Where the Council is satisfied work is needed to repair drainage it may issue a Notice under Section 59 of the Building Act 1984. The notice imposes a duty on a private landowner to carry out the necessary repairs.
  4. Section 17 of the Public Health Act 1961 allows the Council to act to prevent a blocked, obstructed, inadequate or otherwise defective drain or private sewer that is acting in a way that is prejudicial to public health or causing a nuisance.
  5. Under the Environmental Protection Act 1990, Councils must investigate suspected statutory nuisances. To count as a nuisance the problem must:
    • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • Injure health or be likely to injure health.
  6. Councils will consider the nature, degree, frequency, and duration of the problem. If it decides there is a nuisance, the Council must serve an abatement notice which requires the person responsible to take action to stop the nuisance from happening.

What happened

  1. I have summarised below some of the key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what happened.
  2. Mrs X contacted the Council’s environmental health team about the outfall from the Y’s private drainage system, and its effect on her land, in February 2017. She then made a complaint to the Council about it in September 2017 because no progress had been made despite discussions with the Y’s.
  3. Between about February 2017 and September 2017, the Y’s had the system inspected by a local drainage contractor. They found surface water drains connected to the foul drainage system. The contractor rerouted the drains and considered this should help the system work correctly.
  4. Excessive water discharge in November 2017 suggested the works had not been successful. The Y’s employed a second contractor, who said field drains were also discharging into the system. The Y’s told the Council they would look into this and put it right. They also said the drains were coping with run off from the raised land owned by Mrs X behind their property. Mrs X disputes this.
  5. The Y’s drainage consultant contacted the Council in February 2018 with plans for improvement works. A meeting took place at the Environment Agency (EA) office on 6 March 2018. Present were officers from the EA and the Council, and the Y’s. The Council told me it did not arrange the meeting. It was a guest of the EA and that is why it did not invite Mrs X.
  6. At the meeting, the Y’s put forward proposals to adapt the drainage system. The EA and the Council agreed the Council would lead the investigation, because there was not enough evidence of pollution or contamination.
  7. The Council visited Mrs X to discuss the works, and to tell her the Y’s investigations involved a topographic survey of the surrounding land. This needed access to Mrs X’s land. Mrs X was unhappy allowing access to some areas of her land she considered not relevant. The Council told Mrs X it would get more information about why the Y’s needed access to these areas.
  8. The Council wrote to Mrs X on 21 March 2018. It said the Council has duties under section of the 59 Building Act to investigate drainage of buildings and where necessary take legal action to ensure suitable drainage arrangements are put in place. Recent investigations show current drainage at the Y’s address was not satisfactory because groundwater could be entering the treatment works. It said the Y’s consultants had designed a scheme of work to adapt the drainage, but this needed access to Mrs X’s land. It recognised it had agreed to get more information for Mrs X to consider before allowing access. However, having considered the matter with its legal services team, the Council decided it was right to use its statutory powers to require access to assess the efficacy of the scheme. It attached a notice of intention to enter the land.
  9. The Y’s completed improvement works in April 2018. The Council needed wet weather to test the system, but the weather stayed dry for long periods. Officers could carry out dry weather testing.
  10. Mrs X hired a surveyor in June 2018 to carry out an inspection of the discharge and soakaway area. Mrs X’s solicitor sent a report of the findings to the Council in July 2018.
  11. Mrs X’s surveyor’s report states they saw boggy, wet, and foul-smelling ground below the outlet. There was evidence of unsanitary matter discharging from the outlet of the septic tank. He said there was discharge of fluid and material which was questionable and potentially damaging to the environment.
  12. During the summer of 2018, Mrs X cut down weeds around the soakaway area so she could show the Council the impact of the problem.
  13. Council officers met with Mrs X and her husband on 16 October 2018 to view the discharge area. A heated discussion took place which led to Council officers threatening to leave the meeting. Mrs X persuaded them to stay. A Council officer later told the Police about the meeting. They said Mrs X’s husband was agitated and aggressive and was opening and closing a knife during the meeting. The following day, Police Officers discussed the allegation with Mrs X and her husband. Being a farmer, Mrs X’s husband legitimately carried the knife as a tool. The Police took no further action.
  14. I asked the Council for its comments about the meeting. It told me, while Mrs X’s husband did not threaten officers, they were aware of a dispute between Mrs X and the Y’s and thought the information would be useful to the Police.
  15. Mrs X complained to the Council on 31 January 2019 about the officer leading the investigation, Officer A. She was unhappy with Officer A’s conduct at the meeting in October, said he did not follow procedure in contacting the Police, and was not justified in doing so. She also complained about how Officer A looked into her drainage complaint, alleging he was biased towards the Y’s.
  16. The Council responded on 6 March 2019. It said it expects officers who have safety concerns to contact the Police and there is no set route for this. It considered Officer A acted reasonably and in good faith. The Council recognised there were times in the meeting Officer A sounded exasperated and under normal circumstances his language and tone would not be acceptable.
  17. The Council started collecting samples of discharge from the drainage system for analysis in June 2019. Council officers carried out site visits between June and August 2019.
  18. On 5 July 2019, Mrs X asked an animal health consultant to inspect the soakaway area. Their view was contaminated water was leaving the outflow pipe. This opinion was based on the colour, odour, and evidence of solid matter within the water.
  19. Mrs X collected her own samples, which were analysed by friends working in water quality and ecology and hydrology, respectively. She said the results showed the samples taken were effectively raw sewage.
  20. Mrs X asked the Council to consider her complaint at stage two of the process on 11 September 2019. Mrs X referred to several incidents where she thought Officer A showed bias, ignored her evidence, or gave false and misleading information. She criticised the Council’s sampling, saying they visited at times there was no water flow. She accused Officer A of discussing her evidence with the Y’s, discrediting her, and leading the investigation where he wanted it to go. She asked the Council to remove Officer A from the investigation.
  21. The Council sent its stage two response on 16 October 2019. It said Officer A did not contact the police directly. A colleague in public protection did and this was done properly. It reviewed Mrs X’s recording of the incident and it was not clear if her husband was aggressive, but clearly this is how Officer A felt. It discussed this with Officer A but given his experience, it did not believe more training was necessary. The Council said the investigation was complex and difficult, with strongly opposing views from Mrs X and the Y’s. It did not accept any collusion took place and was satisfied the investigation was fair and proper. It said Officer A should continue in his role.
  22. The Council completed its investigation and wrote to Mrs X to confirm its findings on 5 November 2019. It said three senior environmental health practitioners agreed the evidence showed the system met the requirements of Building Act 1984 and there was no further action needed by the Council. Senior Council managers, the Council’s legal services, and the EA agreed the decision.
  23. Mrs X brought her complaint to the Ombudsman on 3 December 2019. She was unhappy with the result of the Council’s investigation and said the problems with the drainage system continued.

The Council’s investigation

  1. The Council’s investigation focused on the extent the drainage system admitted external water, the effect this had on how it worked, and the quality of effluent discharged at the outfall.
  2. The Council considered it had four possible powers relevant to Mrs X’s complaint:
      1. Environmental Protection Act 1990 (sections 79 and 80 – nuisance)
      2. Public Health Act 1936 (section 50 – overflowing and leaking cesspools)
      3. Public Health Act 1936 (section 79 – removal of noxious matter)
      4. The Building Act 1984 (section 59 – drainage of a building)
  3. The Council considered a and b inappropriate because its site visits did not identify obvious contamination, odour, or sewage solids. The soakaway is found some distance from both Mrs X and the Y’s properties and is in an agricultural field used for sheep grazing.
  4. The Council considered using its powers under section 59(1)(a) of the Building Act 1984 and whether ‘satisfactory provision has not been made’ for drainage of a building. The Council could have issued a statutory notice to the Y’s for improvements. However, early in the investigation, the Y’s re-routed the drains wrongly connected to system to a nearby watercourse. The Council expected this to improve the system. It did not consider it was suitable to use its powers.
  5. Despite these works, heavy rainfall in November 2017 suggested the system was still admitting water from an unknown source. The Y’s employed a drainage engineer. They found field drains serving bordering land was re-routed into the tank and could be leading to the problems.
  6. The Y’s told the Council about their plans to upgrade the system in February 2018, again meaning the Council did not need to consider enforcement action. The Council considered the plan was more than it could reasonably ask the owners to do by serving a formal notice and the timescale for the work appeared shorter. The intended result of the works was to significantly reduce the volume of water entering the system during wet weather.
  7. The Council undertook periodic inspections after the Y’s completed the work in April 2018. This was to view the flow from the outfall and the condition of the soakaway. It considered the works were largely successful. Its investigations did not suggest contamination of effluent with sewage solids. Four experienced officers visited the site on different occasions and did not witness sewerage solids or smell any odour.
  8. Despite further complaints from Mrs X, the Council was satisfied, on reasonable grounds, there were no further wrong connections affecting how the system worked. The Council considered the remaining water entering was most likely because of minor defects in sections of drains.
  9. The Council employed its own independent contractor to provide an opinion. The Council’s contractor produced a report on 2 April 2019 which said ground water was entering the system and overwhelming it. They considered a high volume of suspended solids goes through the system untreated. They said suspended solids were present at the outfall but confirmed there was no evidence of sewage fungus or odour. They recommended a new treatment plant.
  10. The Council shared the report with the Y’s, who provided a detailed response which undermined many of the consultant’s observations. They pointed out mistakes in the report, which was at times vague and contradictory. They questioned the consultant’s qualifications and asked for evidence to support the statements made.
  11. The Council told me that it placed no weight on the report of its contractor because of clear flaws and technical errors, as well as a lack of understanding about how the drainage system worked.
  12. The Council agreed, with the EA, to assess the quality of the effluent discharge under different weather conditions to gauge the effect the extra water entering had. They agreed to use the historic Royal Commission Standard to measure this. The standard specifies maximum levels of ammonia, biological oxygen demand and suspended solids an effluent could contain when discharged directly on to a watercourse.
  13. The Council then carried out sampling. In general, it found the system met the Royal Commission Standard. Results showed the effluent was better under wet weather, suggesting added water diluted the effluent rather than carrying sewage solids from the tank. Even in dry conditions, the Council found the system reduced the pollutants in the effluent and met the Royal Commission Standard.
  14. These results, and the lack of other significant evidence to the contrary, led the Council to decide the Y’s adapted drainage system was satisfactory within the meaning of section 59 of the Building Act. The Council based this on its belief the system appeared:
    • To have enough capacity.
    • Not to give out excess water.
    • Has not resulted in obvious sewage solid contamination.
    • To produce usually clear and odourless effluent.
  15. The Council recognised the system admits some extra water, but it is diluted, and results suggest the system can deal with current demands.

Site visits and sampling

  1. In total, Council records show it conducted 17 site visits between October 2017 and September 2019. Of those 17 visits, 7 were to collect samples for analysis. Sampling took place between June and September 2019. On one occasion a sample could not be taken because there was insufficient flow of water. On another occasion, officers did not enter Mrs X’s land due to heavy rain.
  2. There are no entries where officers recorded having smelt any odour. There are three occasions where officers positively recorded that they did not smell any odour.
  3. There are two occasions where officers recorded seeing standing water in the soakaway area. Though on one of those occasions there was noted to be heavy snow.
  4. Samples were taken by the Council at a stage when the effluent has been partially treated. Of all the samples taken by the Council, the peak figures for suspended solids, ammonium, and biological oxygen demand are well within the limits compared to those of typical pollutant levels for untreated sewage.
  5. Samples taken by the Council’s consultant were disregarded, as there was concern about how the samples were taken, stored, and handled. In particular, the samples were stored too long and incorrect dates appeared to be given for collection and submission to the laboratory.

The Council’s consideration of Mrs X’s evidence

  1. The Council considered samples taken by Mrs X were unreliable because of the method of collection and the equipment used. Mrs X collected samples using instruments such as lengths of guttering and a bin lid. She used some cloth material to create a filter. The Council considered gross contamination of these samples was likely.
  2. The Council said the samples looked like organic material, not sewerage solids. It therefore did not attach significant weight to this information and found no evidence of contamination on the many visits conducted by experienced officers.
  3. The Council considered Mrs X’s independent report lacked understanding of how old the system was and how it worked. The Council therefore did not afford it significant weight.
  4. Terms in the report referring to ‘unsanitary’ and ‘questionable’ material were unclear. The Council did not know if this meant sewage solids, which should be readily identifiable, but Council officers never saw.
  5. From the method of construction and materials used, the Council estimates the system was installed in about 1950. This meant most of the General Binding Rules, which Mrs X’s consultant referred to, do not apply. The Building Act 1984 has specific requirements about private drainage and is relevant no matter what type or age of system. Mrs X’s consultant did not mention the Building Act.
  6. The Council did give significant weight to Mrs X’s evidence of the outflow in wet weather with an increased flow rate. Given the dry weather which had occurred throughout the investigation, officers struggled to view the system in these conditions. Mrs X’s evidence suggested that, despite improvements, water was still entering from outside the system. This allowed officers to form the view the investigation should continue.

Response to my enquiries

  1. The Council told me it carried out a thorough investigation of the drainage issues and has arrived at a point where the drainage is satisfactory the purposes of the Building Act 1984.
  2. The Council said the system and the case had several unusual features which meant it was not normal. Officers had never seen land drains connected to a septic tank and the Y’s first contractor did not discover this.
  3. The nature of the drainage system means water is held in the tank and not discharged straight away. It works by allowing sewage solids from the mainly liquid effluent to settle. Material entering the infall then displaces the effluent already in the tank, forcing it into the next stage of the treatment process. The timing of the Council’s inspections would not therefore affect the quality of the outfall.
  4. The Council recognised Mrs X wanted morning sampling to coincide with the Y’s using the shower. Given the difficulties between Mr and Mrs X and the Y’s, the Council considered this was an unnecessary intrusion on their privacy which would achieve little given the why the drain works.
  5. A failing system would have left obvious sewerage solids at the outfall and soakaway area (such as faeces, toilet tissue, fats, and detergents). This would be readily clear to officers with drainage investigation experience and would lead to growth of fungus.
  6. The open and unprotected nature of the outfall meant debris could enter the drain overnight and early morning samples could contain material which had not originated in the system.

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Analysis

  1. The Council considered use of its statutory enforcement powers. It decided it was unnecessary to act because the Y’s had sought professional opinion and shown the Council their plans to improve the drainage system. The Council did not consider the discharge and soakaway area created a nuisance. The Council’s powers are discretionary, and I do not criticise the Council for taking this approach.
  2. I can understand Mrs X feeling frustrated when the Council did use its statutory powers against her to allow access to her land for the Y’s drainage consultant. The Council wanted the investigations to take place straight away and was conscious of the fact Mrs X was reluctant to allow the Y’s access to some areas of her land. Mrs X was waiting on further information from the Council about why the Y’s needed access. Instead of providing this information, and to prevent delays, the Council went straight ahead with issuing a legal notice for access. It could have liaised better with Mrs X about this and it is unsurprising this led to a decline in relations between Mrs X and the Council. The Council was entitled to take this action, so it was not fault, but the Council could have handled the situation better.
  3. Relations between Mrs X and the Council worsened further following discussions on site which resulted in a Council officer contacting the Police. I have listened to a recording of the incident and, to me, the exchanges sound heated or passionate rather than threatening. I can understand how distressing it was for Mrs X and her husband when the Police visited, and why this led to increased feelings of Council bias against her. I have not seen evidence to suggest the Council was wrong to contact the Police. I cannot know how officers felt about their safety, or what their motivations were.
  4. The Council should have been more mindful of maintaining better relations throughout the investigation. It accepted it would not normally excuse the way Officer A spoke to Mr and Mrs X. However, I understand why the Council was not more critical of Officer A on this occasion, because Mrs X addressed Officer A in much the same manner.
  5. Three Council investigators, the Council’s legal services, and the Environment Agency all agreed to the result of the investigation and the action taken by the Y’s. Mrs X may disagree, but I have not seen evidence the Council did not properly consider her complaints.
  6. I have not seen evidence of bias by the Council. It conducted a detailed investigation over several years, and oversaw the Y’s carrying out improvement work. The Council was not dismissive of Mrs X’s evidence, or it would not have investigated or ensured some corrective action was taken. The Council had to engage with the Y’s about Mrs X’s complaints to address them.
  7. It was unnecessary for the Council to say Mrs X’s evidence was not asked for. This added to Mrs X’s feeling the Council preferred the Y’s evidence. It is only natural for someone to want to provide evidence to support their complaint. This is another example of where the Council should have been mindful about maintaining better relations by using different language.
  8. There is a difference of opinion about the volume of discharge and about the material leaving the system. Mrs X thinks the discharge is harmful waste causing an odour. The Council does not agree. It disputes the findings of Mrs X’s sampling and did not agree with Mrs X’s expert report. It favoured the views of its officers and the results of its own sampling. It is entitled to do so and that was not fault.
  9. The Council also has a different view to Mrs X about the reason for the deterioration of the soakaway. In effect, it thinks Mrs X made the problem worse. Mrs X disputes this but the Council gave a considered reason, so I have not found there was fault.
  10. I can understand Mrs X’s feelings about bias. It appeared to her the Council rejected her evidence, blamed her for some of the deterioration of the soakaway area, and accepted the evidence put forward by the Y’s.
  11. However, on the evidence seen, these were not arbitrary actions or responses from the Council. It has been able to provide reasons for its decisions and why it discounted some of Mrs X’s evidence. It is to be expected in an investigation that some pieces of evidence will be preferred over others.
  12. It is not the role of the Ombudsman to assume the Council’s decision-making function. Our role is to ensure the Council followed the correct procedures and took account of all relevant information when it made its decisions. On the evidence seen, the Council has properly considered the available evidence. It was entitled to rely on the professional opinion of experienced officers, and to give more weight to the experts whose evidence it found most compelling. It chose not to take enforcement action because it was satisfied with the works the Y’s proposed and did not consider there was a nuisance. In these circumstances, I cannot question the merits of the Council’s decisions.

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Final decision

  1. I have completed my investigation. There was no fault in the Council’s investigation into Mrs X’s neighbour’s drainage system.

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Investigator's decision on behalf of the Ombudsman

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