The Ombudsman's final decision:
Summary: Mr and Mrs X complain the Council refuses to take action against a developer who built a housing development close to their property and filled in and built over a watercourse without permission. There was no fault in the Council’s actions.
- Mr and Mrs X complain the Council refuses to take action against a developer who built a housing development close to their property and filled in watercourses without permission.
- Mr and Mrs X say this has caused flooding to land they own.
- They want the Council to issue a statutory notice to reinstate the watercourses.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke to Mr X and considered his view of the complaint.
- I made enquiries of the Council and considered the information it provided.
- I referred to the Lancashire and Blackpool Local Flood Risk Management Strategy.
- I wrote to Mr and Mrs X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The law and Council policy
- If a stretch of watercourse runs on or under a person’s land, or on the boundary of that land, the landowner will have duties and responsibilities in relation to that water. In law, the landowner will be referred to as the ‘riparian’ owner of the watercourse.
- Under section 25 of the Land Drainage Act 1991 councils have the power to ensure that appropriate maintenance is carried out by riparian landowners on watercourses. These powers can be exercised if it is considered a lack of maintenance or an alteration to a watercourse poses a flood risk.
- Therefore, if a landowner carries out actions that adversely impact on the flood risk to another landowner’s property, councils have the right to serve a legal notice on the responsible party to carry out remedial work to resolve the issue. These are powers are not a duty so use of these powers is at a council’s discretion.
- Councils will usually only take enforcement action when necessary and as a last resort when it has explored all other opportunities to resolve the issue
- If a council decides enforcement action is necessary, it should:
- advise the responsible party in writing that they must carry out the necessary maintenance works within a specified time;
- if the works are not carried out in the specified time, a council may serve a notice under Section 21(2) of the Act requiring the responsible party to abate the nuisance; and
- where there is non-compliance with the Section 21(2) legal notice, the council then has the power under Section 21(4) of the Act to carry out the remedial works and recover the costs of the works from the responsible party.
- Some years ago, the Council granted planning permission for a residential development.
- Following this, Mr and Mrs X bought a property with land bordering the development. They began to experience flooding to the land. Mr X said the connecting road also flooded.
- Mr X says the reason for the flooding is because the Developer filled in a watercourse whilst building the residential development.
- On 5 December 2018, Mr X met with Council officers from Highways and Planning on site.
- On 6 December 2018 a Council officer (Officer 1) emailed Mr X and said the Council would issue ‘letters’ to the Developer for the reinstatement of the watercourse.
- On 18 December 2018, Mr X made a formal complaint to the Council because he was unhappy with the length of time it was taking to resolve the situation.
- Officer 1 wrote to Mr X on 16 January 2019. The letter said that at the site meeting the Council agreed it needed to further investigate the position of previous drainage on Mr X’s land before taking any action.
- Mr X was dissatisfied with the response and on 24 January, he emailed the relevant Council Director. Mr X said at the meeting the Council had agreed to take action to enforce the reinstatement of the watercourse and this was confirmed in Officer 1’s email dated 6 December 2018. He was unhappy that the Council now seemed to be backtracking on that decision.
- The Council responded on 20 March 2019 and said it had been agreed “that we meet with [the Developer] in order to inform them of our intention to issue a Section 25 notice for reinstatement of the watercourse. We believe this is an appropriate course of action, giving them the opportunity to consider the matter and potentially rectify without the need for a notice… Ultimately I cannot promise that we will be successful but we will endeavour to pursue what we believe to be the appropriate course of action, which is reinstatement of the watercourse or other appropriate satisfactory water management measures to resolve the situation”.
- Mr X responded on 1 April. He was unhappy the Council wanted to meet with the Developer and said it should issue a statutory notice as agreed at the meeting in December 2018.
- Later in April 2019, the Council took statements from the previous owner of Mr and Mrs X’s property who said the watercourse existed for over 50 years. The gardener who had worked there for 10 years also confirmed the existence of the watercourse.
- In June 2019, the Council emailed Mr X to update him. The Council officer said they had tried to arrange a site visit with the Developer but they had refused the offer. The officer said that as a result, they had passed the matter to the Council legal team who had asked an expert barrister for advice. The email said “Once we have this [advice] it is highly likely that we will serve notice. We are also looking at our other options to escalate the matters, once of which would be to re-excavate a watercourse using council resources and then recharge this work to [the Developer]”.
- In July 2019, the Council received the specialist legal advice from the barrister. Mr and Mrs X also received a report they had commissioned from a consultant engineer. Following the specialist legal advice, the Council revised its decision to issue a statutory notice.
- On 11 October 2019, the Council met with the Developer and an independent consulting engineer. The Developer, who still denied the existence of the watercourse, offered as a gesture of goodwill to clear the off-site ditches and dig a ditch from Mr and Mrs X’s property and connect that into an existing watercourse.
- The Council discussed this proposal with Mr and Mrs X on 23 October 2019 who rejected it. Mr and Mrs X made a counter proposal for the Developer to purchase a strip of land at the end of their garden and re-line and re-fence the watercourse. The Developer rejected this proposal.
- Mr X emailed the Council in March 2020 to say nothing had been resolved and his land and the highway continued to flood. The Council arranged a meeting with Mr X but due to the Covid19 pandemic this was put on hold.
- The Council wrote to Mr X on 18 March 2020 and said he had rejected the Developer’s proposal who had in turn rejected Mr X’s proposal. The Council wrote “It is the Council’s position that any issues of flooding on your property is a private dispute between yourself and [the Developer]. I would suggest that if you are dissatisfied that you seek independent legal advice”.
- Mr and Mrs X were unhappy with the Council’s response and complained to the Ombudsman.
- In response to my enquiries, the Council said it was currently looking at practical options to try and resolve the flooding in the area.
- We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine, define or interpret law.
- Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
- The Council has responded appropriately and in line with the law to the issues raised by Mr X. It does have the power to issue statutory notices, but those powers are discretionary. In this case, the Council decided not to issue a notice. It made this decision in full knowledge of the facts of the case and after considering its specialist legal advice. The Council then tried to resolve the matter through informal channels. It arranged a meeting with the Developer who agreed to a course of action to potentially alleviate the problem of flooding. This was not satisfactory to Mr X. Following that, the Council has told Mr X if he wants to take further action he must do so privately. The Council continues to work to resolve the issues of flooding to the road. There was no fault in the Council’s actions or its decision not to issue with Developer with a statutory notice.
- There was no fault in the Council’s actions. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman