Summary: Mr D complains the Council unreasonably served him with a section 59 Building Act 1984 notice to remedy disrepair to the drains from his property. We have found no fault by the Council.

The complaint

1. Mr D complains the Council unreasonably served him with a section 59 Building Act 1984 notice to remedy disrepair to the drains from his property. Mr D says the pipes were damaged during building work by a neighbour. He also complains the Council charged an excessive amount for carrying out the remedial works in default after he refused to comply with the notice.
2. Mr D says the Council’s actions are unfair and have caused him significant distress, affecting his mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. We have decided to use our discretion to investigate as it is not reasonable to expect Mr D to appeal the section 59 notice to the magistrate’s court due to his mental health issues.
7. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
8. Mr D 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

Relevant law and policy

9. Councils must ensure properties have adequate foul water drainage and treatment. Section 59 of the Building Act 1984 gives councils powers to act where they find 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.
10. Where the council is satisfied work is needed to repair drainage the Act says it must serve a notice on the owner to replace or repair the system. If the owner fails to comply within the timescale in the notice, the council can do the works in default and recover its reasonable costs from the owner.
11. The Act allows a right of appeal against the notice to the magistrates' court. The grounds for appeal include:
• the recipient considers the time given to carry out the works is not 'reasonably sufficient',
• the notice is not justified,
• the notice should be served on the occupier not the owner, and
• that someone else who benefits from the works should contribute to the costs.
12. Following a tendering exercise, the Council has an approved drainage contractor. The Council’s policy is to obtain one quote for works where the estimated cost is expected to be below £25,000. It may seek quotes for drainage works from other contractors, but only those who operate to the same criteria as its approved contractor.
13. The Council provides options to settle an invoice including payment by agreed instalments or leaving the sum as a land charge against the property which would subsequently be recovered on the future sale of the property with the addition of interest accrued. If an invoice is not paid, the Council may make arrangements to attempt to secure payment of the debt. The ultimate outcome of this process is civil court proceedings for debt recovery, where the debtor would have an opportunity to say why they did not owe the monies.

What happened

Background

14. Mr D lives in a detached house. In 2019 an occupier of a nearby property (House X) told the Council that rainwater, and at times soapy water, was discharging through a pipe into a garden of a neighbouring property and was then running through the boundary wall onto their land.
15. The Council’s environmental health officer carried out dye testing of rainwater and foul drainage for several properties. This testing found that Mr D’s new washing machine outlet was directed into a rainwater drain at the rear of his house. This drain was dye tested and found to be connected to the pipe discharging water into the garden of House X.
16. Further dye testing whilst it was raining found a rainwater drain at the front of Mr D’s house was also connected to the pipe, but the drains at another property were not.
17. The Council wrote to Mr D in October 2019. It said rainwater and washing machine waste water from his property were discharging onto someone else’s land. The Council was investigating to see if other properties were also connected to the pipe.
18. The Officer visited again in November 2019 and found one of Mr D’s rainwater drains was connected to the combined drainage system, which in turn connected to the Yorkshire Water network. His three other rainwater drains (one of which took the washing machine waste water) were connected to a different pipe which was discharging into a neighbouring garden and emerging into House X’s garden. The Officer found that the neighbouring properties’ drains were connected to a different drainage system.

Section 59 notice

19. In December 2019, the Council served a section 59 notice on Mr D requiring him to properly connect the rainwater and washing machine waste water drainage system within 56 days (by 10 February 2020).
20. Mr D disputed that he was responsible for the problem but he did not appeal to the magistrate’s court about the notice. He told the Council that as its building control team had previously approved the drains when the house was built, it was the Council’s responsibility to fix the problem. Mr D also said the problem stemmed from building works his next-door neighbour had carried out a few years earlier, which damaged the drain pipework running under his land. Mr D spoke to his local councillor and asked for the notice to be paused until he could resolve the situation with building control. Mr D also spoke to his MP, who wrote to the Council.
21. The Council said Mr D should consider taking civil action against his neighbour if they had altered or damaged his drainage system and he may wish to seek legal advice. As the building was approximately 20 years old the Council was not responsible for any matters relating to the property.
22. The Council said Mr D needed either to connect all drainage from his building to the combined drain or to install a macerator pump for the washing machine and connect it to the foul water drainage. It might be possible to take the rainwater to a soak away on his own land, but tests would have to be carried out to determine if the ground was suitable and any costs incurred would be the responsibility of Mr D and not the Council.
23. If the notice was not complied with, the Council could do works in default, prosecute or both. Although the timescale to comply with the statutory notice could not be changed, the decision to enforce the notice was within the Council’s control and if Mr D took action to comply within a reasonable timeframe, it would delay further enforcement action.
24. The Officer visited Mr D in April 2020 and found the section 59 notice had not been complied with. Mr D said he had removed the washing machine drain outlet from the inlet to the drainage system and was collecting the waste water and disposing of it. The Council did not consider this to be a permanent disconnection or suitable resolution.
25. As the deadline for the notice had passed, the Council considered whether to carry out the works. The Council asked its approved contractor for an estimate of the cost of the works, but Mr D considered this was too high. The Council then asked for a second quote form a different contractor. This quote was about £1,300 plus VAT. Mr D said this was too expensive and he would make his own arrangements.
26. The Council wrote to Mr D’s MP to set out the situation. The letter contained a word that was spelt in a way Mr D considered to be a racial slur. The Council wrote to Mr D to say the spelling was a typo which had not been intentional and it apologised for any offence given.
27. Mr D did not carry out the repairs specified in the notice. The Council sought advice from the water authority, it agreed that the three rainwater drains could be connected to the combined drainage system which connected to its network. The Council therefore decided to carry out the works in default and wrote to Mr D to advise him of this.
28. The Officer visited Mr D on 19 October with the second contractor. Mr D agreed the works were required and that the contractor could proceed. The work was completed.
29. The Council issued an invoice to Mr D on 2 November 2020 for £1,667.35, made up of:
• £1,200 contractor costs
• £171.28 officer costs
• £18.18 admin fee
• £277.89 VAT
30. Mr D arranged to pay the invoice in instalments.

Mr D’s complaint

31. Mr D then complained to the Council that he was being charged too much and the Council had not taken into account he was on a limited income. He said the Officer had only been there for 30 minutes and the contractor’s costs were too high. He also said he was not liable for the problems with the drainage and water was still leaking.
32. The Council responded on 23 December 2020. It said:
• The officer costs were based on time investigating and advising on the case, including four site visits and conversations with the contractor and Mr D. This totalled 4.25 hours at an hourly rate of £40.30.
• The Officer’s checks had not found any leaks and there was no evidence the works were substandard.
• The Council said it had seen no evidence that the neighbour had damaged Mr D's drain, but in any case, this was a private civil matter and could not be taken into account. The Council had to serve notices on the owners of the drains where defects were identified and the invoice could not be split with a third party.
• The contractor’s costs were in line with its estimate and the Council offered payments by instalments.
33. Mr D complained to the Ombudsman. He told us he had a significant mental health condition for which he took medication and physical health problems. He said going to court would make him seriously ill.

My findings

34. It is not the role of the Ombudsman to assume the Council's decision-making function. My role is to ensure the Council followed the correct procedures and took account of all relevant information when it made its decisions.
35. Section 59 of the Building Act requires councils to serve notices on the owners of a property, if the Council has determined that that property’s drainage is insufficient.
36. Following a report of water in the garden of House X, I have seen evidence that the environmental health officer visited Mr D’s property and other neighbouring properties. The Officer carried out tests which showed that the water in House X was coming from Mr D’s house. It determined this was because Mr D’ s rainwater drains were incorrectly connected and found the private drainage system at Mr D’s house to be insufficient.
37. I find that the Council properly considered the available evidence and it was entitled to rely on the professional opinion of experienced officers to determine this. The Council was therefore required by law to serve notice on Mr D to secure the necessary repairs and there was no fault in it doing so.
38. Mr D says the cost of the works is excessive. This is not something the Ombudsman can determine. However, the Council followed it policy on seeking a quote from its approved contractor and then another quote from a contractor it deemed suitable. I have seen no evidence of fault in the way it did this so I cannot challenge the cost of the work.
39. I understand Mr D considers the Council is liable as he says it had previously approved the drainage at his property. That was around 20 years ago and is not a matter I can consider now. In addition, building control inspectors do not act as a clerk of works. The responsibility for compliance with building regulations rests with the property owners and builders. The courts have held that councils are not liable for pure economic loss arising from a dispute about the quality of works. So even if the drainage was incorrectly installed or approved, I cannot say the Council would be responsible for any repairs.
40. The Ombudsman cannot determine whether Mr D’s drain was damaged by his neighbour. I am aware Mr D has reservations about going to court, but this would now be the only option if he considers his neighbour has caused damage and he wants to pursue the matter further.

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Final decision

41. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman