Summary: The Ombudsman found some fault on Mrs D’s complaint about the Council failing to resolve the problem of local flooding, maintaining the drainage system, and monitoring what enters it. It failed to provide records in support of its claim of communicating properly with her. It also failed to provide evidence it advised her before November 2021 about her riparian responsibility. The agreed action remedies the injustice caused.

The complaint

1. Mrs D complains about the Council failing to:
1. resolve the problem of local flooding over several years;
2. maintain the drainage system properly;
3. monitor the water entering the system; and
4. properly communicate with those affected by flooding.
2. As a result, she has suffered severe flooding of her land on several occasions and a catchpit to the front of her property is eroding causing a danger to road users.

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What I have investigated

3. The paragraph at the end of this statement explains why I have only investigated Mrs D’s complaint from December 2020.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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 council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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The law and Council policy

7. 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. A watercourse includes a river, stream, or ditch, for example. These drain the land and drain surface water away and help prevent flooding.
8. While a riparian owner possesses rights over a stretch of watercourse, they also have certain responsibilities. The responsibilities of the owner include:

• maintaining the watercourse, keeping it clear of any obstructions which would hinder the normal water flow, and manage flooding;
• accepting the natural flow from the upstream neighbour and transferring it downstream without obstruction, pollution, or diversion;
• maintaining the banks and bed of the water course; and
• maintaining any structure on the owner’s stretch of the culvert and to keep it free of debris.

9. Under the Land Drainage Act 1991, councils can serve notices requiring riparian owners to do necessary works on watercourses and have the power to ensure they carry out appropriate maintenance. (section 21 and 25) These powers can be exercised if it is considered a lack of maintenance, or an alteration to a watercourse, poses a flood risk. As these are powers, not duties, councils can use of them at their discretion.
10. 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
11. The Council’s ‘Joint Lincolnshire Flood Risk and Water Management Strategy 2019-2050’, states that as Lead Local Flood Authority, it arranged with the internal drainage board for it to act on its behalf for the purposes of consent and enforcement.
12. Riparian owners can face legal action if the lack of maintenance of their watercourse causes flooding.
13. The Council, as highway authority, can drain water from the highway in to a water course with no maintenance responsibility. It is only responsible for maintaining the highway drainage system which is designed for draining the highway network. It is not responsible for private ditches next to the highway. (Highways Act 1980)

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How I considered this complaint

14. I considered all the information Mrs D sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.

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What I found

15. Mrs D is unhappy with the Council’s response to the long running problem of the flooding of her property. Problems began when a new development was built on land across the road. She believes the developer connected pipes from the site to the ‘catchpit’ just outside the entrance to her property. A catchpit is an empty chamber installed into a drainage system to prevent silt and debris building up and causing blockages.
16. Water, which now includes surface water run-off from the site, enters the catchpit and flows down covered culverts and open dykes (ditches) that pass to the front of houses on her side of the road. These culverts get blocked. When this happens, water backs up to her catchpit which then floods on to her and her neighbour’s land.
17. The Council says this catchpit is the responsibility of Mrs D as riparian owner.
18. Mrs D says a highways manager told her after the last flooding, that the catchpit needed digging out as it takes more water from the new development than intended.
19. Mrs D wants the entire drainage system along the highway maintained regularly to prevent blockages. She also wants the Council to examine all the culverts as she believes some of the pipes connected to it means water cannot flow and drain along it properly. There is a manhole cover at the end of the road which contractors say has not been opened for many years. She wonders if this contributes to her problems. She is also concerned about the Council’s lack of knowledge and understanding of the drains under its control.
20. In its response to our enquiries, the Council explained:

• between March/April 2021, it asked contractors to carry out jetting of the highways system and completed a drainage investigation. The contractors found a broken pipe under the trees in the garden of one property. The report noted this pipe needed repairing and 2 dykes needed digging out;
• in May, the Council asked the contractor to repair the broken pipe;
• during June/July, it had various telephone discussions with Mrs D and explained the ditches, catchpit, and piped culvert sections running along the fronts of houses were riparian responsibility. No copies of these records were sent. Due to the road flooding, the Council agreed, as a gesture of goodwill, to carry out some additional works;
• in August, the Council arranged for a contractor to excavate and repair a section of the pipe. The pipe is the responsibility of an adjacent landowner. It carried out the work as a gesture of goodwill to these landowners;
• part of the dyke’s pipework had collapsed and open sections of it were not maintained. This resulted in water not draining away fast enough. In September, the contractor carried out the repair. The contractor suggested digging out the dykes to the front of several properties;
• in November, in response to her formal complaint, the Council explained the works done to the watercourse were technically the responsibility of adjacent landowners. It also confirmed she was responsible for the maintenance of the catchpit;
• highway gullies are cleaned once a year;
• in January 2022, the Council replied to Mrs D’s councillor’s email confirming the culvert/ditch are the riparian owner’s responsibility but, it agreed to clear them, including the catchpit; and
• it arranged for a ditch clearance for April/May 2022. This was delayed because of resourcing issues with its contractor.

21. It said the local internal drainage board did not consider the extent of the flooding justified formal enforcement action. This was because there was no internal flooding of a property recorded. The Council did not provide evidence of the internal drainage board’s decision.

Analysis

22. I make the following findings on this complaint:
1. It is not within our jurisdiction to decide ownership and liability for ditches, culverts, and catchpits as this is for the courts to decide.
2. The Council is the Lead Local Flood Authority for Lincolnshire which means it is responsible for managing the risk of flooding from surface water, ordinary watercourses, and ground water.
3. To meet its statutory obligations, it works with other risk management authorities, including the internal local drainage board. This is a public body that manages water levels in an area where there is a special need for drainage to reduce flooding.
4. The Council is also the Highways Authority which means it has responsibility to carry out repairs to the highway and highway drainage to ensure it does not flood. Its responsibility does not include privately owned ditches running alongside the highway.
5. The evidence shows the Council took steps to resolve the flooding earlier on in 2021. This included sending contractors to jet the culverts and inspect the drainage system in front of the houses. This was done and showed there was a section of broken culvert. It also showed some of the ditches needed clearing out. The contractors carried out the repair. The clearing out of the ditches has yet to be done. This is because of resource issues with the contractors.
6. I consider the delay in carrying out the clearing of the ditches amounts to fault. This is because this work was identified in April and in September. Having agreed to do it, the Council delayed carrying it out. It failed to fully explain what the resource issue was with the contractor which caused the delays. Nor did it explain why it could not instruct another contractor to do the works instead. These failures amount to fault.
7. The Council says it explained to Mrs D in June/July 2021 that properties which have the culvert/dykes running to the front of them are the riparian owners. This means the riparian owners, of which she is one, has responsibility for their repair and maintenance. This includes her catchpit. As such, the Council is not responsible for their maintenance and repair. The Council failed to provide evidence of explaining this to Mrs D before November, when it responded to her complaint. This is fault.
8. I am satisfied the fault caused Mrs D an injustice. This caused distress by way of frustration, stress, raised expectations, and uncertainty about the legal position. I also took account of the fact it was always an option for Mrs D to seek her own independent legal advice about responsibility for the culvert and catchpit, rather than waiting for the Council to confirm the position. From at least November 2021, Mrs D and other neighbours were aware of their own responsibility for clearing out culverts and the catchpit so could have taken action themselves to ensure they were in good repair, for example.

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Agreed action

23. I considered our guidance on remedies.
24. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs D a written apology for its failure to: provide evidence of its claims of telephone contact with her in June/July 2021 about riparian responsibility; show it advised her about her riparian responsibility before November 2021; carry out the ditch clearance without delay.
2. Remind officers of the need to make and retain records of contact with members of the public of advice given about riparian responsibility.
3. Review whether it was possible to have instructed a different contractor to carry out the clearance work rather than waiting for the one instructed.

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Final decision

25. I found fault on the complaint of Mrs D against the Council. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

26. The law says we cannot usually 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 council has done.
27. Mrs D complained to us in December 2021. This means we can only investigate the Council’s actions from December 2020. I have not been provided with any good reasons why we should investigate before this date.

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Investigator's decision on behalf of the Ombudsman