Summary: Mrs B complains the Internal Drainage Board (“the IDB”) threatened to take enforcement action against her while taking no action against a nearby golf club. Mrs B says both decisions put her home at risk. The Ombudsman finds fault in how the IDB communicated with Mrs B, in not investigating concerns about the golf club and its complaints procedure.

The complaint

1. The complainant, who I refer to as Mrs B, complains the IDB asked her to carry out expensive works to a ditch next to her property. She says when she raised concerns the work would undermine her property and cause flooding, the IDB threatened her with enforcement action.
2. Mrs B also complains the IDB has not taken enforcement action about the expansion of a ditch by a neighbouring golf club, or its discharge of water and effluent into a nearby drain. Mrs B says the expanded ditch poses a threat of flooding to her property. She says there is a conflict of interest as the chief executive of the IDB is personal friends with the former owner of the golf club.
3. Mrs B says the IDB did not properly follow its complaint procedure and delayed in responding.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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 local authority has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. If we are satisfied with a local authority’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

9. I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the IDB. I sent a copy of my draft decision to Mrs B and the IDB for their comments before making a final decision.

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What I found

Law, Guidance and Local Policies

10. Internal Drainage Boards are independent bodies responsible for land drainage in areas of special drainage need. IDBs undertake works to reduce flood risk to people and property and manage water levels for agricultural and environmental needs within their district. They are established under the Land Drainage Act 1991 and have permissive powers to supervise matters relating to the drainage of land within their districts.
11. The IDB’s powers include making byelaws, taking enforcement action against riparian owners to maintain the flow of a watercourse, and undertaking work to alleviate flooding.
12. Section 23 of the Land Drainage Act 1991 says no person shall erect any obstruction or culvert or alter a culvert in a manner that would likely affect the flow of a watercourse, without the consent of the IDB concerned.
13. The IDB’s Byelaw No.6 says: ‘No person shall, without previous consent of the Board, take any action, or knowingly permit or aid or abet any person to take any action to stop up any watercourse or divert or impede or alter the level of or direction of the flow of water in, into or out of any watercourse’.
14. Byelaw No.17 says: ‘No person shall without previous consent of the Board –
• c) Make or cut or cause or permit to be made or cut any excavation or any tunnel or any drain, culvert or other passage for water in, into or out of any watercourse or in or through any bank of any watercourse.’
15. Where an IDB takes enforcement action to require works for maintaining the flow of a watercourse, it must serve a notice on the riparian owner. The owner has a right of appeal against the enforcement notice to the Magistrate’s Court. There are six grounds on which the owner can appeal, including:
• (a) that the notice or requirement is not justified by [the legislation]
• (C) that the body which served the notice has refused unreasonably to approve the carrying out of alternative works, or that the works required by the notice to be carried out are otherwise unreasonable in character or extent, or are unnecessary
• (f) that some other person out to contribute towards the expenses of carrying out any works required by the notice
16. A riparian owner is anyone who owns a property where there is a watercourse within or adjacent to the boundaries of their property. A watercourse includes a river, stream or ditch.
17. The IDB has a complaint procedure published on its website. It says the person investigating the complaint will always be ‘the Board’s Clerk or a senior member of the Board’. It says if someone is not satisfied with its reply, if possible it will investigate further and review the concerns at a more senior level in the Board.

Background

18. Mrs B lives in an area that is at high risk of flooding. Her house has a ditch running alongside it at the rear, bordered on the other side by a field. Mrs B is a Riparian owner of the ditch, along with the owner of the field (“Mr Y”). The ditch previously ran through a culvert under the entrance to a field. However, over time this culvert has become blocked with soil and debris. On the opposite side of the road at the front of Mrs B’s house is a large open drain that is not connected to her ditch.
19. Another field, adjacent to Mrs B’s house, has another ditch running through it that the IDB says was once connected to Mrs B’s ditch. The field has regular problems with surface water flooding and the ditch is often flooded. The owner of that field (“Mr Z”) contacted the IDB to find a solution to the surface water flooding issue.
20. In early 2020 the IDB wrote to Mr Y asking him to clear the blocked culvert and restore the drain to its original condition. The IDB did not write to Mrs B, who found out about the proposed works anecdotally.
21. Mrs B wrote to the IDB raising concerns about the works. She said there was already water in her ditch and reopening the culvert and allowing water to flow from the flooded ditch into her own could undermine the structural integrity of her home. Mrs B said large parts of the ditch network along other sections of the road (that she was not riparian owner of) had become blocked with debris or filled in completely, meaning the situation had changed and her ditch may have to take three times as much water than originally intended if she opened the culvert. Mrs B said her ditch flowed downhill into those former ditches, and where the flooded ditch met them, meaning she was an upper riparian owner and did not have to accept flows of water from them. She said at the time the original ditch system came into being, the now flooded ditch did not exist.
22. The IDB says Mrs B’s ditch is downstream from the flooded ditch and is the only place the water can go.
23. Mrs B also raised concerns about potential flooding from a large ditch on land owned by a neighbouring golf course at the other end of her property. She says the golf course has built a culvert between that ditch and the open drain. She says the ditch holds overflow water from a lake but also effluent from a caravan site owned by the golf course.
24. Mrs B arranged a site meeting with the IDB and her local parish council. The IDB has not provided its notes of the meeting. However, Mrs B says it asked her to carry out works to clear the culvert and excavate the ditch to a lower level, and recommended tradesmen.
25. Mrs B emailed the IDB a few days later indicating she would get a quote for the works. The following day she emailed again to say that she had asked a structural engineer to complete a report. She said the engineer told her under no circumstances should she lower the ditch due to the risk it posed to her home. She suggested re-routing the ditch via the adjacent field.
26. Mrs B said her solicitor had advised that all conversations going forward should be in writing rather than telephone calls. The CEO of the IDB responded to this email saying he was very disappointed that she now refused to engage in conversations except via solicitors and this left him with little option but to take enforcement action, which was expensive and time consuming for all parties. He said that by refusing to do anything Mrs B was opening herself to damage claims from third parties. He accepted a structural engineer would say not to excavate near her property but that the flow of water must be maintained.
27. Mrs B submitted a complaint to the IDB in April 2020 about the manner of the email from the CEO and the threat of enforcement action. Mrs B asked that the IDB consider the potential damage to her property and the problems posed by the golf club ditch. She also asked that it reimburse her for the structural engineer report, as she said she had been forced into getting this so the IDB would take her concerns seriously.
28. An assistant to the CEO completed the complaint investigation in late April 2020. She did not uphold the complaint as she said the IDB can take enforcement action and it was Mrs B’s decision to employ a structural engineer. Mrs B says the CEO’s assistant should not have completed the investigation due to her close links to the CEO, who Mrs B was complaining about. She asked to appeal the decision. Mrs B says the IDB initially did not agree to complete the appeal until she complained to the Ombudsman.
29. The Chairman of the IDB responded to Mrs B’s appeal in July 2020. He again did not uphold the complaint and said the IDB had the powers to carry out enforcement action.
30. The IDB has now decided not to take enforcement action and instead construct a culvert from the flooded ditch to the opposite open drain at its own expense. It says it considers this the easiest and quickest way to resolve the issue in this case but could not take this approach to all riparian drain issues in its district.
31. The IDB says it cannot see how the golf course ditch would add to the flood risk at Mrs B’s home. It says it understands Mrs B is in dispute with the golf course and it is not willing to enter that dispute. It says that theoretically the golf course would need a consent to discharge water from its ditch, through the culvert into the open drain. However, it has no record of receiving or granting an application for consent.

Findings

32. There are three primary issues I have investigated as part of this complaint:
• The way in which the IDB went about proposing works to the ditch running alongside Mrs B’s house and the possibility of enforcement action
• The IDB’s response to Mrs B’s concerns about the golf club ditch
• The IDB’s complaint procedure

Proposed works and enforcement

33. The first thing to note is that I cannot question the merits of the IDB’s decisions about enforcement action. The IDB has powers to require owners to maintain a watercourse. It is for the IDB to decide what works it considers necessary and, if it takes enforcement action, the person involved has a right of appeal to the court.
34. In this case Mrs B and the IDB dispute whether she is upper riparian, the nature of the original ditch system and whether changes over time mean her ditch would now receive more water than in the past if the culvert is reopened. Had the IDB decided to take enforcement action, these are issues that would have been dealt with in any appeal. As it is, the IDB has not taken enforcement action and resolved the issue in another way, at its own expense.
35. Therefore, I can only consider whether there is any fault in the way it communicated with Mrs B around its proposed works.
36. Mrs B says she felt the IDB was giving her no option with the threat of enforcement action. I do not find fault in this respect. The IDB has the power to suggest works and take enforcement action if it considers necessary. Therefore, it is not fault for the IDB to set out what powers it has.
37. However, I have concerns about the email from the CEO to Mrs B. It gives the impression of discouraging Mrs B from taking independent legal advice and even that this was the main reason it would take enforcement action. Given the IDB was asking Mrs B to complete expensive works and she had concerns about her property, it was entirely appropriate for her to take her own legal advice. Her request for any further discussions to be in writing was not unusual or unreasonable.
38. There is also no evidence the IDB properly responded to Mrs B’s concerns about the impact on her home. The correspondence shows Mrs B repeatedly raised concerns about risk to her property. She provided the IDB with a structural engineer report. There is no evidence the IDB considered this or what the impact might be. The only comment I can see the IDB make in response to Mrs B is that ‘a structural engineer will say do not excavate anywhere near the property, but the flow of water must be maintained’.
39. This suggests the IDB accepted a qualified engineer would believe it might cause a risk of damage. Yet in its response to me it says it cannot see how this would be the case as it would only restore the previous flow of water. The IDB does not address Mrs B’s points about changes to the rest of the ditch system, or deterioration of her property over many years, that she says mean it now poses a greater risk. There is no evidence it addressed any specific concerns the engineer report raised in deciding there was no risk.
40. I note one ground of appeal is that an IDB has unreasonably refused to approve other works, or the works are unreasonable in character. Therefore, it would have been good practice for the IDB to consider Mrs B’s concerns about her property, explore any alternatives, and properly explain and record its reasons for what it considered the risk was and why it would or would not go ahead with any alternatives. Ultimately, it was then the IDB’s decision whether to take enforcement action and Mrs B could appeal this.
41. The IDB says it engaged amicably with Mrs B throughout and completed many site visits, including to ascertain water levels. However, it has not provided any of the requested records of these visits, or plans of its proposed works, so I have no evidence of how it addressed Mrs B’s concerns during face-to-face meetings.
42. The IDB did consider and adopt an alternative solution at its own expense at a later point. However, with the above in mind, I am of the view there was fault in how it communicated with Mrs B around the proposed works, which caused avoidable, added distress.

Golf club ditch

43. I find fault in how the IDB has responded to Mrs B’s concerns about the golf course ditch.
44. I have not investigated whether the IDB should have taken enforcement action in 2007 as this is out of time. However, there are aspects of the complaint that are ongoing. For instance, Mrs B says the golf course has carried out recent works to expand the ditch again, following incidents of overflowing into the ditch next to her home. Mrs B says this poses a future flood risk to her home. Also, the culvert from the golf course ditch to the open drain is continuously discharging water and treated effluent.
45. The IDB says it will not get involved in a private dispute between Mrs B and the golf club. Mrs B says there is not a private dispute. I accept that any private dispute between Mrs B and the golf club would not be relevant to the IDB. However, Mrs B has raised concerns about potential flooding to her home. The IDB has general responsibility for land drainage in its area. It has powers to undertake works to alleviate flooding or to take enforcement action in respect of a breach of its byelaws.
46. There is no evidence the IDB has considered whether there is a flood risk from the golf club ditch and if there is any action it might take in this respect, particularly if the ditch exists as a result of a breach of its byelaws or legislation, on altering a watercourse. It is the IDB’s decision whether or not it is necessary to take action but it needs to properly record how it considered the factors involved and reached its decision, and communicate this to Mrs B.
47. The IDB says the golf cub may need consent to discharge from the culvert but it has not received any such application. Given the IDB has identified the golf club is doing something that may need a relevant consent from the IDB, but has not applied for that consent, there is clearly a question over whether the IDB should take enforcement action. Again, the IDB needs to properly record how it considered the factors involved and the rationale behind its decision about whether to take any action. Mrs B raised the complaint, so it needs to communicate its decision and reasons to Mrs B. There is no evidence it has done so.
48. Mrs B raises further concerns that the CEO of the IDB has a personal relationship with the former golf club owner, who is still involved in its running. The IDB says the relationship is purely professional.
49. I cannot make a judgement on whether there is a conflict of interest in this instance. The IDB is a small organisation where it is inevitable the CEO will have a role in day-to-day decision making. It is also possible the CEO will know landowners in the area. I do not have evidence to suggest any relationship impacted on the IDB’s decision making. I can only address the fault I have found generally in not properly considering whether to take action or recording its reasons.

Complaint procedure

50. I find fault in the IDB’s complaint procedure.
51. In its response the IDB says the assistant to the CEO is a senior member of staff and suggests it is normal for her to investigate the complaint. On the face of it, this appears to contradict its complaints procedure, which says the Board’s clerk or a senior member of the Board will complete the investigation.
52. If the complaint procedure intends to mean that a senior member of staff will complete the investigation, as a pose to a senior member of the IDB’s Board, it needs to be clearer. Even so, I cannot say a response from a Board member would have been any different. The Chairman of the Board considered the complaint at the second stage and did not find fault. It only adds to the fault around communication with Mrs B.

Consideration of Remedy

53. I recommend the IDB apologise to Mrs B for the fault identified.
54. I understand the entire situation has caused a lot of distress to Mrs B at a difficult time. It is always likely to have caused some level of distress for the IDB to propose expensive works and outline its powers around enforcement action. However, I can only recommend a remedy for injustice that follows necessarily from the fault. In this case that is the additional, avoidable distress caused by fault in the way the IDB communicated with Mrs B. I therefore recommend the IDB pay Mrs B £100 to recognise the distress caused.
55. Mrs B asks that the IDB recompense her for instructing a structural engineer. This is not something I can recommend. I understand Mrs B felt she had no option. However, the IDB did have the powers to propose works and take enforcement action if necessary. I have only found fault in its communication. If the IDB had properly considered and responded to her concerns, it may well still have made the same decisions. Therefore, I cannot say that, but for that fault, it is any less likely Mrs B would have felt the need to engage a structural engineer. It was Mrs B’s choice to engage the engineer and I cannot say the IDB should reimburse these costs.
56. The IDB should now properly consider whether it will take any action in respect of the golf club ditch and/or culvert, record its reasons and communicate these to Mrs B. It should also review its complaint procedure to ensure it is clear about who will investigate complaints going forward.

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Agreed action

57. The IDB has agreed to, within a month of this decision:
• Apologise to Mrs B for the fault in its communication and in not properly considering whether to take any action in respect of the golf course ditch
• Pay Mrs B £100 to recognise the distress caused
• Consider whether to take action in respect of any potential flood risk and breaches of byelaws/legislation by the golf club, record how it considered the factors involved and its reasons and communicate this to Mrs B
58. It has also agreed to, within three months of this decision:
• Review its complaint procedure to ensure it is clear about who will conduct complaint investigations

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Final decision

59. The IDB is at fault in how it communicated with Mrs B, in not investigating concerns about the golf club and its complaints procedure.

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Investigator's decision on behalf of the Ombudsman