Lincolnshire County Council (19 019 636)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 29 Oct 2020

The Ombudsman's final decision:

Summary: Mrs C complains the Council failed to maintain a nearby drainage system and respond to her reports of issues and take appropriate action. Mrs C says the local area has suffered flooding and she has incurred unnecessary costs. The Ombudsman has found fault in the Council’s record keeping and communication with Mrs C but considers the agreed action of an apology, £250 and procedural improvements are enough to provide a suitable remedy.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complains the Council failed to properly maintain a nearby drainage system including culverts and drains and failed to properly respond to her reports of issues and take appropriate action.
  2. Mrs C says because of the Council’s fault, the local area has suffered flooding and a 2019 flooding event was exacerbated by a partly silted up and collapsed culvert and she has incurred unnecessary costs.

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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)

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How I considered this complaint

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

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What I found

  1. A riparian landowner is the owner of land that is next to a watercourse or has a watercourse running through or beneath it. Riparian landowners have discrete legal rights and responsibilities in relation to the watercourse and its banks.
  2. Mrs C reported flooding from what was described as an overgrown drain to the Council on 27 December 2018. The Council visited the site on 28 December and found no standing water on the highway or other flooding. The Council has provided the record of this site visit. The Council noted the water in the drainage ditch on the north side of the road was 1.2 metres below the road surface level with all the relevant pipes above the water line and able to discharge road surface water to the ditch. The officer made a note on the file that drains and/or ditches beyond the carriageway were not maintained by the Council as Highways Authority and were the responsibility of the adjacent landowners. There is no evidence Mrs C was provided with this information at the time.
  3. The Council’s response to Mrs C following her report stated “We have assessed the fault you reported and will not be taking any action at this time. We will continue to monitor this location as part of our safety inspection schedule.”
  4. Mrs C made a similar report on 1 November 2019 which received the same response.
  5. Mrs C reported a flooding incident on 7 November. Mrs C says the watercourse overtopped its bank upstream of her property and flood water caused the septic tanks to overflow. Mrs C says the flooding was exacerbated by a partially silted up culvert which appeared to have collapsed in heavy rain.
  6. The Council’s record for this report says sandbags were to be provided and that the land drain along the north side of the road needed to be cleared and pumped out and asked for this to be investigated as Mrs C had stated she had previously raised this issue with the Council.
  7. It is understood that a drainage company attended the area on 8 November and found part of the culvert collapsed and a local farmer completed some works on 9 November.
  8. The Council’s records of 7, 8 and 11 November include a drainage map, notes of a site visit and photographs. The site visit notes record a riparian drain to the front of three properties which appeared to have been recently maintained and cleaned. It was confirmed by a person at one of the properties that the drain had been blocked with debris and caused water to back up and flood gardens but a local farmer had helped clear this of old tree roots, silt and other debris. It was noted the drain outside Mrs C’s property appeared to be culverted and some works were underway outside the property boundary with evidence of recent maintenance. The other two properties were also referenced and it was noted that some maintenance/repair was needed to part of the culvert at one location although the riparian ditch would still flow. The report referred to safety barriers opposite Mrs C’s property and that some of the watercourse bank had been dug out to allow highway surface water to flow into the watercourse which was considered to present a potential highway danger should a vehicle veer into the area. It was noted all the gardens were lower than the highway.
  9. Mrs C complained to the Council on 10 November about its failure to clear and maintain the land drain and culvert which both took surface water from the highway and noted the relevant Internal Drainage Board properly maintained the dyke on the other side of the road.
  10. The Council responded to Mrs C on 14 November. This stated the matter had been closed following her December 2018 report as all the drains and ditches beyond the carriageway were not Highways maintainable and the responsibility lay with the adjacent owners including Mrs C. The Council confirmed it had the right to dispel surface water into these private drains.
  11. Mrs C escalated her complaint on 3 December. The Council met with Mrs C on 5 December. The Council says it made clear at this meeting that the watercourse adjacent to Mrs C’s property and alongside both drains and culverts remained the responsibility of the adjacent owners. The Council has not provided a contemporaneous note of this meeting. The Council has provided a note dated at the end of January 2020 which refers to the site meeting with Mrs C in December. This note says the situation was discussed including the issue of riparian ownership and that the Council was not responsible for ditch maintenance.
  12. Mrs C chased the Council on 13 February as she had not received a response to her escalated complaint of 3 December. The Council responded on 18 February to say it had understood her complaint had been resolved by the site meeting of 5 December. It would appear the Council did not make this clear at the meeting and good practice would have been to follow this up in writing. The Council should also have provided a written response to Mrs C’s complaint. The Council apologised to Mrs C on 20 February for the lack of clarity in its complaint response. The Council also suggested Mrs C would need to seek her own independent legal advice if she wished to pursue the matter of land ownership and liability.
  13. Mrs C complained further on 21 February about the ownership of the watercourse. The Council responded to Mrs C on 25 February and confirmed the position that the watercourse and culverts adjacent to her property remained her responsibility as owner to maintain and that if she wanted to challenge ownership, she should seek legal advice.
  14. Mrs C says the title plans for her property show the culvert as being outside her property boundary and she does not accept the Council’s view it is her responsibility as the adjacent landowner. The Council has provided a plan setting out the area it considers it has a liability to maintain which shows the extent of the public highway extending up to the end of the verge but not encompassing the ditch. The Council considers the ditch/culvert is riparian and notes that although Mrs C’s deeds may show the boundary of her property this does not necessarily affect riparian responsibility.

Analysis

  1. The Ombudsman cannot decide the ownership or question of liability for the watercourse which would ultimately be a matter for the courts. I have to consider whether the Council provided a proper response to Mrs C’s reports and considered what, if any, action was appropriate.
  2. I am satisfied the Council responded to Mrs C’s reports. The Council has provided good evidence it visited the site and subsequently met with Mrs C.
  3. However, I am concerned that following the Council’s site visit in December 2018 there is no evidence it provided Mrs C with information about the responsibility for the watercourse. The Council’s response to Mrs C confirmed it would not be taking any action but would continue to monitor the location as part of its safety inspection schedule.
  4. The Council suggests this is a fairly standard response which means it would continue monitoring to see if the situation changed and any further action was required by highways or other partner agencies.
  5. I consider the Council failed to provide clear information about its assessment of responsibility for the watercourse in response to Mrs C’s December 2018 report and this is fault. I also consider it was reasonable for Mrs C to reach the conclusion from the Council’s response that although it did not consider any action was needed at that time it accepted some ongoing responsibility for the watercourse. It is not until the Council’s complaint response of 14 November 2019 that it confirmed all the drains and ditches beyond the carriageway were not Highways maintainable and the responsibility lay with the adjacent owners including Mrs C. This response is after the flooding incident of 7 November. I have gone on to consider what injustice this fault caused Mrs C.
  6. Mrs C has advised the Ombudsman that if she had been told it was her responsibility to repair/maintain the watercourse in December 2018, she could have arranged any necessary work and avoided the serious flooding incident of November 2019. Mrs C says that although she was successful in her application for grant assistance for her property repairs she incurred other costs of about £600 for dehumidifiers, pumps and a flood survey to access the grant and £900 as her proportion of the culvert repairs.
  7. I do not consider there are grounds for me to ask the Council to make a payment towards Mrs C costs. The Council did not identify any obvious faults during its site visit in December 2018 that would have required action by the responsible owner. The partial collapse of the culvert appears to have taken place suddenly during the November 2019 flood event. I cannot say, even on a balance of probabilities, that this potential collapse could have been foreseen by Mrs C even if she had been made aware earlier of her responsibility for the watercourse. I also have to consider if an awareness of her responsibility would have led Mrs C to agree, fund and complete works with her neighbours which would have avoided the flood event in November 2019. On balance, I do not consider this to be the case as the motivation for the works was understandably created by the flood event itself and the desire to prevent a further occurrence. I accept this is a finely balanced judgement on my part.
  8. I do consider that the provision of clear information about responsibility for the watercourse in December 2018 would have prevented Mrs C spending time and effort on making further reports and her subsequent complaint.

Agreed action

  1. The Council has agreed to:
      1. write to Mrs C to apologise for not providing information about the responsibility for the watercourse in response to her December 2018 report within one month of my final decision;
      2. pay Mrs C £250 for her avoidable time and trouble within one month of my final decision;
      3. review its reporting procedures to ensure it provides clear information about the responsibility for any particular watercourse when responding to reports within three months of my final decision;
      4. review its record keeping procedures to ensure an adequate and contemporaneous record is made of meetings within three months of my final decision; and
      5. review its complaint procedure within three months of my final decision to ensure a written response is provided when a person escalates their complaint.

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Final decision

  1. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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