Summary: We found fault by the Council on Mrs J’s complaint about how it dealt with her reports of surface water run-off entering her land from a nearby road. It failed to investigate this report. It failed to show how it assessed either the need for a fence along part of the road or its later decision not to erect it. Communication with her was poor. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains the Council failed to:
1. prevent water running off the nearby highway from flooding her garden;
2. prevent noise and fumes from the highway impacting on her health and property; and
3. install a fence as promised to reduce pollution and noise from passing traffic.
2. As a result, she is unable to use her garden which was damaged, her quality of life is affected, and her health has suffered from the stress of it all.

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The Ombudsman’s role and powers

3. If we are satisfied with an organisation’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)
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)

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How I considered this complaint

5. I considered all the information Mrs J sent, the notes I made of our telephone conversation, and the Council’s response to her complaint, a copy of which I sent her. I sent a copy of my draft decision to her and the Council. I considered their responses.

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What I found

6. Mrs J bought her house about three years ago. The house is close to a main road running to its rear. The road is at a higher level than her house and is separated from it by a sloping bank containing vegetation (trees and brambles). The bank is owned by the Council.
7. When she moved in, Mrs J’s rear garden had a vegetable plot, a lawn, and a raised seating area. Later that year, when it began to rain, she noticed water running down the bank into her garden. She spent more time in her garden and noticed it getting wetter causing her to re-lay flagstones several times. It also began flooding when it rained. She noticed increasing health problems with her chest which she believes is because of pollution from traffic using the road.
8. She contacted the Council about her concerns and claims it recommended erecting a fence at the top of the bank covering eight metres. She believes this was to stop flooding. In response to our enquiries, the Council explained the fence was to help reduce noise from the road. It believed the vegetation along the bank at this point was not dense enough to reduce it. In response to my draft decision, the Council confirmed the intention behind the fence was not related to flooding.
9. Mrs J also claims the officer recommended removing vegetation back from her fence as this was damaging her panels. She says the Council ordered the fencing materials for the works but, eight months later, changed its mind saying the vegetation along the bank had now grown. She argues the bank contains mainly weeds. The Council says it contains a mix of grass, trees, and low-lying vegetation. It provided a photograph taken from Google 'street view' taken in June 2021 showing the amount of vegetation when it cancelled the fence order.
10. In response to my draft decision, the Council pointed out Mrs J did not mention water run-off during her initial contact but only after it had agreed to erect the fencing. Its says it advised her twice to carry out an environmental survey to support her claim about noise and fumes affecting her health.
11. These are key dates:

2020:

12. June: The Council notes she asked it to erect a fence to reduce noise and pollution and says she did not make it clear this was for additional fencing. I have not seen a copy of this contact. In response to my draft decision, the Council said it refused her request. Two weeks later, it told her she could erect a fence within her own land. It also explained her initial contact was by telephone and it does not have a transcript. Notes on its system state she wanted a fence erecting behind her house to ease pollution and noise from the road.
13. August: The Council’s response to my enquiries noted she had called, concerned mud from the bank was already affecting her property boundary.
14. September: Officers visited the site. In response to my draft decision, the Council said it also confirmed it would not install a new fence as it had no responsibility to do so.
15. October: The Council raised a work order for eight metres of fencing for the top of the bank although it says no materials were ordered. It could not do the works because the Covid-19 pandemic meant it had to prioritise safety critical work. In response to our enquiries, the Council said the intention of the fence was to help reduce noise from the road affecting Mrs J. It explained the lack of vegetation was the reason for the fence. Insufficient vegetation was not blocking out noise. It went on to say the offer of the fence was a goodwill gesture by a highways operation engineer and should not have been made. In its response to my draft decision, the Council said it advised Mrs J to get an environmental survey to support her claim abut noise and fumes. If this showed a problem, it would explore options.

2021:

16. January: Mrs J contacted the Council explaining her garden had flooded over Christmas from water running down its bank. She expressed concern about the damage it might do to her foundations and her health as the house bricks were becoming damp. She wanted an engineer to assess the situation. Another email from her the same month repeated her concerns about water running off the highway, down the bank, and into her garden. She referred to flagstones moving because of the water. The Council recorded her contact as a complaint.
17. February: The Council responded to her complaint, explaining why the works were delayed and apologised. It also explained it would try to complete the works as soon as possible.
18. May: Mrs J chased the Council for an update.
19. June: Following further contact, another site visit was done. During this visit, the Council decided the vegetation was dense enough that a fence was not needed. It accepts it failed to tell her of this decision. Mrs J chased the Council for an update.
20. July: Mrs J again chased the Council for an update.
21. August: Mrs J contacted the Council about its lack of response to her emails about the fence. She complained this was her fourth email without any response. An officer replied saying the Highways team would contact her. The Council says an internal query about the cancellation of the order noted a new site visit found the vegetation has thickened enough to negate the need for it. It also claimed, in response to the draft decision, that an inspection of the toe drain was done and found no problem. This is at the foot of the embankment. No evidence of this inspection was provided.
22. September: Mrs J chased the Council on a couple of occasions as she had no response to her emails. An officer emailed to say she would remind Highways to contact her. Hearing nothing further, Mrs J emailed again the following week. She was told an officer would call her that day, but the officer failed to do so.
23. October: An officer from Highways called Mrs J. The Council explained why it would not now install the fence.
24. In response to my enquiries, the Council explained as Mrs J made no mention of surface water run-off causing her a problem, this was not investigated. Nor was there any historic problem of water run-off at this location either. It apologised for the failure to respond to all her contact and says this was in part due to disruption caused by significant weather events and the impact of Covid-19.
25. In terms of air quality, the Council explained district authorities monitor air quality and the local borough council may have information about air quality for this road depending on whether it has a monitoring station nearby. It noted fumes only really cause a significant air quality problem on heavily congested roads in urban or built-up areas, which is not the situation where Mrs J lives. It pointed out information on the website for the Department for Environment, Food & Rural Affairs shows pollution levels as ‘low’ for this area. I have checked this site which confirms what the Council said.

My findings

26. I found fault on this complaint and in reaching this view, took account of the following:
1. I have not seen a copy of Mrs J’s original contact with the Council about the problems she experienced with her garden.
2. The Council agreed in October 2020 to erect fencing on the road at the top of the bank. It failed to provide evidence of: who made this decision; what factors were taken in to account when reaching it; why it decided it could reduce noise; its intended purpose. If it was to address her concern about noise, there is nothing to show why the Council decided to install a standard fence rather than an acoustic fence, for example.
3. Nor did it provide evidence of any of the site visits done, how it assessed the problems Mrs J was concerned about such as the drainage of surface water from the road. In its response to our enquiries, the Council explained it only did visual inspections so has no written notes.
4. There is no evidence of the Council explaining to Mrs J, when it reached its decision, what the fence was intended to achieve in terms of her concerns.
5. The Council confirmed the intention of the fence was not to reduce surface water entering her land as claimed by Mrs J.
6. Although it says Mrs J did not mention surface water drainage, her emails sent in January 2021 show she did raise this as a concern. There is no evidence the Council investigated her concerns of water run-off from the highway entering her land from its land. It failed to act on her reports.
7. The Council is also the highways authority. This means it manages highway drainage from its roads. There is no evidence it explored whether there was any problem with highway drainage which caused the run-off. As owner of the land forming the sloping bank, the Council should have investigated what was happening with water passing over its land on to neighbouring land.
8. In response to my draft decision, the Council said it has now investigated the site and is satisfied there is no drainage issue for which it is responsible which is causing pooling of water in her garden. It pointed out the carriageway has raised kerbs which direct water in to the highways drainage system. A toe drain at the foot of the embankment captures water run-off from the embankment and is not blocked. It notes no other resident reported a similar problem. It also provided evidence showing the history of the site. There is no evidence of the Council considering these issues at the time it reached its decision.
9. The Council decided not to proceed with the fence in June 2021. There is no evidence showing who reached this decision, what factors were taken in to account, and what had changed from the time of its decision to erect it. The Council says the decision was made by the local highways operations manager who first made the offer. The change in view was because vegetation on the bank was now dense enough to help reduce noise to Mrs J’s property. There is nothing to show how it assessed the capacity of vegetation to reduce traffic noise, what guidance it considered when reaching its decision, and evidence of the vegetation being denser than eight months earlier. Nor was there any evidence of the Council considering the possible density of the vegetation during the winter months, for example, when foliage is lost.
10. Images from the internet, and a photograph Mrs J sent, show tall trees running along the foot of the bank. Around their base is what appears to be brambles and shrubs. Between them and the road is relatively low laying undergrowth. There would, therefore, have been little growth in terms of the trees. It is unclear how low laying brambles and shrubs would impact on noise from this road. In response to my draft decision, the Council points out the house can hardly be seen from the road due to the density of the vegetation. It provided photographs in support.
11. While there is no evidence of the Council agreeing to cut back vegetation to the immediate rear of her fence, this was raised in her reports and should, therefore, have been assessed.
12. There was poor communication with Mrs J about the fence once it decided to erect it. The records show Mrs J repeatedly chasing officers for updates and a promised call back to her was not made.
13. It also failed to tell her about its decision to cancel the fencing in June 2021. Instead, she continued to chase the Council about it until she was finally told of its decision in September, three months later.
14. I am satisfied the identified fault caused Mrs J avoidable injustice. It caused distress in the form of uncertainty about whether the Council reached justifiable decisions, and whether the outcome would have differed but for the fault. She had the raised expectation the Council would erect the fence when in fact, it had decided not to months earlier. In addition, she lost the opportunity of having it considered properly. Some of her concerns were not considered at all. She suffered frustration with the delays and poor communication, along with the time, trouble, and inconvenience to which she was put chasing the Council about it which would also have undermined her confidence in it.

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Agreed action

27. I considered our guidance on remedies and the potential impact of Covid-19.
28. I also considered the steps the Council took to investigate her claims of water from the road crossing the bank it owns and flooding her land.
29. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs J a written apology for its failures to: show the process, evidence considered, and reasoning for its decisions; act on, and investigate, her other concerns raised; communicate properly and promptly with her.
2. Pay Mrs J £300 for the injustice caused.
3. Review its decision-making procedure so decisions in the future are clearly recorded, evidenced based, and show their reasoning.
4. Review why the communication failures and delays occurred and take steps to ensure they are not repeated on future cases.
5. Visit the site and i) assess her claim vegetation and soil washed down the bank, is building up against her fence causing damage and rot, and ii) consider whether it needs to remove/clear it back from her fence.
6. Review why it failed to investigate her claims about the water and vegetation/soil building up against her fence.

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Final decision

30. I found fault on Mrs J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman