Summary: There is no fault in the administrative process the Environment Agency has followed to develop the flood alleviation scheme. We have not investigated the technical merits of the scheme. We have completed our investigation.

The complaint

1. Mr X complained the height of the flood defences proposed by the Environment Agency (the Authority) are too low. He considers the data and modelling used by the Authority is inaccurate.

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What I have investigated

2. I have investigated the process the Authority followed in reaching its decision to implement the proposed flood alleviation scheme. I have not investigated the technical merits of the proposed scheme nor the modelling data the Authority used. This is not the role of the Ombudsman.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an authority’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)
5. If we are satisfied with an 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

6. I have considered Mr X’s complaint and the information he has provided. I have also considered the Authority’s response to Mr X and the supporting information.
7. Mr 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

The role of the Authority

8. The Authority is the principal flood risk management authority in England. It is responsible for, amongst other things, forecasting, mapping flood risk and managing the risk of flooding.
9. The Authority has the power to carry out land drainage or flood protection works. All powers relating to flooding and land drainage are permissive; so the various bodies involved do not have a duty to take action. They have to prioritise work based on need and take action using public funds when they consider it is justified to do so.
10. If the organisation concerned has assessed the need for flood defence work, followed the proper procedures and relevant guidance in a timely way and then reached a decision, we are unlikely to uphold a complaint.

What happened

Background

11. Mr X lives in a property near a river. He is also the Chair of the Board of Directors of the management company with responsibilities for properties by the river. He is a retired engineer. The river near where Mr X lives has a long history of flooding. In 2015, the area was badly hit by severe floods. In response to this, the Government allocated funds to the Authority to better protect the homes and businesses in the area.
12. The Authority said that existing flood defences have been built over many years and no longer provide the level of protection needed to deal with the increased volumes of water. It said it would use the money to develop a flood alleviation scheme.

Development of the flood alleviation scheme (‘the Scheme’)

13. The Authority explained the different stages of scheme development. These are to:
1. Understand what type of flooding occurs in a specific area (whether it comes from rivers, rainfall or the existing drainage network).
2. Consider all possible options to reduce flood risk and examine them all to find the most appropriate one.
3. Move onto the design stage, looking at all aspects of the design to ensure the chosen option is feasible.
4. Obtain planning consent before starting construction. This is to ensure the Agency takes account issues ranging from public safety and environmental concerns to the impact of the work on road traffic and pedestrians.

5-Year Flood Action Plan

14. In 2016, the Authority published a 5-year Flood Action Plan. The Plan summarised what changes could be made to the existing flood defences and what new ones could be built. It set out what the Authority had done since the 2015 floods. This showed that it:
• Started flood defence repairs.
• Held public drop in sessions.
• Reviewed and updated the flood warning areas.
• Held a public exhibition.
• Carried out scheme feasibility studies and assessments.
• Published a report on the feedback from the public exhibition.
• Carried out improvements to river level monitoring.
• Completed detailed model reports and results.
• Held a second exhibition highlighting the 5 year plan for the area’s flood defences.
15. The Plan outlined the work to be undertaken over the next 5 years. The Authority said the possible works were created using historical information, an independent review and suggestions by members of the public. At this stage, the Plan showed what would need to be done to provide the area with improved flood protection. The Authority highlighted that the options would require further analysis around their feasibility, cost and appropriateness for the area concerned.

Planning application

16. In summer 2020, the Council approved a planning application submitted by the Authority. This was for flood alleviation works to reduce the risk of flooding for 135 properties near the river, including Mr X’s.
17. The Authority held online (due to Covid-19 restrictions) public events in July and September 2020 which provided further information about the scheme. It also offered a question and answer session to address people’s concerns. The Authority concluded the event by inviting people to get in touch if they have further questions.

Mr X’ s concerns

18. For a number of years, Mr X has been corresponding with the Authority about their work on the proposed Scheme. He has provided them with extensive information and research to support his views. The Authority has committed a significant amount of time and resources responding to Mr X. This has been in the form of letters, emails and phone calls as well as engagement at public events and meetings.
19. Mr X said that while the Authority used computer modelling to inform the Scheme, he has been monitoring the river levels for years. He said he has used his expertise to calculate flood levels and the required height of future defences. Mr X is concerned that the surface profile of the river in future peak flood, obtained by the Authority from its computer model are unrealistic.
20. The Authority said that flood modelling is extremely complex and will always involve a degree of uncertainty. It said that in constructing his arguments, Mr X is relying upon publicly available data which is insufficiently detailed and of limited use without a sophisticated modelling system to analyse such data.
21. It went on to say a key element of each component of the flood defences is that they all achieve a minimum level of flood protection. The defence aspiration is 1 in 100 Annual Exceedance Probability plus a climate change allowance. The Authority confirmed the proposed scheme delivers this standard.
22. The Authority said it follows the same principles when designing a flood scheme anywhere in the country. It said the Authority uses models to ensure a scheme will provide a required standard of protection. It said it commissioned consultants to use hydraulic modelling to predict peak water levels consistent with the defence aspiration of 1 in 100.
23. Mr X said the Authority did not refute his predictions by showing where his analysis was at fault. He said it focussed on answering his questions by explaining how its modelling works. He said the Authority just repeated that it had complete confidence in its computer model so that, by inference, Mr X’s practical analysis of levels in the river must be wrong.
24. The Authority disagreed with Mr X’s comments that it has done nothing to refute his reasoning. The Authority said its responses to Mr X’s technical questions were primarily focused on explaining how the modelling works. It said, this was in an attempt to provide Mr X with assurance as to its robustness. However, the Authority recognises more could have been done to explain how their modelling reconciles to the data he is relying on.

Analysis

25. The Authority correctly followed the steps to developing a flood alleviation scheme. It obtained the evidence, assessed different options, kept the public involved, and obtained the relevant permissions.
26. The Ombudsman has no role in determining whether the Authority’s calculations and proposed scheme are correct. My role is to look at how the Authority made its decision and whether there was administrative fault. If there was no fault in the way the decision was made, the Ombudsman cannot question it, no matter how much Mr X disagrees with it.
27. There is no evidence of administrative fault by the Authority in the way it has reached its decision to implement the flood alleviation scheme.

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Final decision

28. I have completed my investigation. I have found no fault with the process the Authority followed when reaching its decision to implement the flood alleviation scheme.

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Investigator's decision on behalf of the Ombudsman