Essex County Council (23 019 313)

Category : Environment and regulation > Drainage

Decision : Upheld

Decision date : 08 Aug 2024

The complaint
The Ombudsman’s role and powers
What I have and have not investigated
How I considered this complaint
What I found
Agreed action
Final decision

The Ombudsman's final decision:

Summary: The complainant (Mr X) complained about the Council’s failure to take effective action to unblock the ditch next to his property and about the Council’s inadequate communication. We found fault with the Council. This fault caused injustice to Mr X in the form of ongoing uncertainty about the Council’s intentions toward the issue he reported. The Council agreed to apologise, send Mr X a plan of action and make a symbolic payment to recognise Mr X’s time and trouble.

The complaint

Mr X complains the Council failed to take effective action to unblock the ditch next to his property. He also complains about the Council’s inadequate communication.
Mr X says the Council’s failings caused the problem with drainage affecting his property becoming more and more severe. The increase of groundwater has been impacting Mr X’s septic tank system which could lead to serious consequences. Mr X says he had to pump water from the ditch over the winter to ensure his septic tank still worked.

The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)
When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

What I have and have not investigated

I have decided to investigate what happened from February 2021. Some of the events happened more than 12 months from when Mr X came to us but the complaint is about the Council’s continuing failure to take enforcement action. Because of the history of Mr X’s communication with the Council and its repeated assurances it would act to resolve the issue Mr X complained about, it is right to exercise our discretion to investigate what happened from February 2021.

How I considered this complaint

I spoke with Mr X and considered the information he provided.
I made enquiries with the Council and considered the information it provided.
I reviewed “Essex County Council Land Drainage Enforcement Policy” and the Council’s “Complaints and Representations Policy 2022”.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Legislative and administrative framework

Land Drainage Act 1991

The Council is a Lead Local Flood Authority (LLFA) as defined by the Flood & Water Management Act 2010. This means it has responsibility to lead on managing flood risks caused by surface water, ground water and ordinary (small) watercourses. Among other matters, the Act requires the Council:

to prepare and maintain a strategy for local flood risk management;
to carry out works to manage local flood risks in its area;
to investigate significant local flooding incidents and publish the results of those investigations;
to exercise powers under the Land Drainage Act 1991; this contains powers to issue consent for altering, removing or replacing certain structures or features on ordinary watercourses and enforcing obligations to maintain flow in a watercourse and repair watercourses, bridges and other structures in a watercourse.

Section 23 of the Land Drainage Act 1991 states a person must have consent of the relevant drainage board to erect “any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction”. They also need consent to erect or alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse.
Section 25 of the Act states that a drainage board has the power to serve a notice to rectify any issue which impedes the proper flow of water along a watercourse. Notice may be served to any person who has responsibility for the watercourse, as defined in the Act.
The County Council as the Local Lead Flood Authority (LLFA) is the responsible body for issuing consent under Section 23 of the Land Drainage Act and for enforcement of contraventions of Section 24 and 25 of the Act.
If any person acts in contravention of, or fails to comply with, any notice served under the Land Drainage Act 1991, the drainage board may:

Take such action as may be necessary to remedy the effect of the contravention or failure;
Recover the expenses reasonably incurred by them in doing so from the person in default. (Land Drainage Act 1991 Section 24(4))

The Act also gives individuals power to go to a Land Drainage Tribunal where they consider the drainage of neighbouring land requires either the carrying out of work in connection with a ditch passing through other land or the alteration or the alteration or removal of any drainage work in connection with such a ditch.

The Council’s Land Drainage Enforcement Policy

If a landowner carries out actions that adversely impact on the flood risk to another landowner’s property, ECC has the right to serve a legal notice on the responsible party to carry out remedial work to resolve the issues. It should be noted that the Council does not have a duty to act and the exercise of these powers is at the Council’s discretion.
The threshold criteria are designed to cover the situations where it is considered the biggest problems arise from watercourses becoming impeded which will have the biggest impact for residents.
The Council’s policy states: “we will normally take enforcement action where we consider that an ordinary water course is in such a condition that the proper flow of water is impeded and that this impediment is causing harm to a receptor.” In line with the above statement the following elements are necessary before a notice can be served:

Existence of an ordinary water course.
With an impediment to prevent the proper flow.
Which is causing harm.
To a receptor.

What happened

In February 2021 the Council asked the owner of the property next to Mr X’s property (P) for a contact about the works undertaken on the ditch system which seemed to have affected the cross-sectional area. These works were carried out by the developer firm (the Developers) without consent. The Council advised the owner of the property was responsible for ensuring the free flow of water on their land without any obstruction, pollution or diversion which could affect the rights of others.
After a meeting with the Developers and Mr X in mid-December 2021 the Council asked the Developers to send plans for restoring the infilled ditch to an open ditch by the end of January 2022. Restoration works would ensure the ditch is free flowing and reduce the local flood risk. The Council clarified it held no consent for works on the ditch and it would not be possible to ask for it retrospectively. The Council stated the works should be completed by the end of February 2022.
Throughout 2022 Mr X regularly asked the Council for the progress reports. The Council failed to respond to some of Mr X’s emails.
In November 2022 the Council sent the Developers an enforcement notice requiring works to reinstate the watercourse to an open ditch by the end of the first week in January 2023.
At the beginning of January 2023 the Council sent the Developers a reminder. It said that if no explanation for non-compliance with the enforcement notice was provided within 14 days, the Council would consider enforcement action. At the request from the Developers the Council extended the timescales for completing remedial works on the ditch.
At the end of January 2023 the Council told Mr X the Developers had agreed to restore the ditch but would need access to Mr X’s land. Mr X told the Council no access was needed to his property as the ditch was located within the boundaries of P’s property.
In February 2023 Mr X received an email from P with some conditions for undertaking restorative works on the ditch.
After telling Mr X that due to the legal process the Council could not provide him with the details of any progress, from March 2023 the Council’s officer who was supporting Mr X stopped communicating with him. After unsuccessfully asking the Council for the updates on enforcement, Mr X complained at the beginning of May 2023. Having had no response Mr X contacted the Council’s complaint team again in mid-July 2023.
A week later the Council responded to Mr X’s complaint. It apologised for the delays and said the Council’s plan was to communicate with the Developers to restore the ditch to an open watercourse or to pipe the ditch. If the Developers followed the second option, they would need consent. The Council intended to wait for the end of the birdnesting season. The Council told Mr X that any issues which might result in legal action could be lengthy to resolve and had to remain confidential to any third parties involved. The Council said it could not provide any further details or updates.
Mr X brought his complaint to us at the end of February 2024 and a few days later asked the Council for an urgent update. Mr X explained after the recent heavy rainfall his sceptic tank was at maximum capacity and on the verge of flooding the garden with sewage. He said he had installed pumps to remove some of the excess groundwater caused by the infilling of the ditch.
Mr X complained again to the Council at the beginning of March 2024.
After an intervention from a local councillor, in March 2024 the Council issued another enforcement notice for the Developers with the deadline of mid-April 2024 to complete works reinstating the open ditch.
In mid-May 2024 the Council responded to Mr X’s complaint. It confirmed the Developers were responsible for restoring the ditch to its previous condition, but there had been limited contact and cooperation from them. The Council stated it was not responsible for restoring the ditch but would contact the Developers again to find a resolution.
At the beginning of June 2024 the Council’s officer told Mr X the Developers were expected to restore the ditch to its previous condition. The Council had various options if they did not comply but these matters might take time.

Analysis

The Council issued two enforcement notices telling the Developers to unblock the ditch. By doing so the Council recognised the Developers’ responsibility for the blockage and the harm it caused to Mr X.
The Council’s enforcement powers remain discretionary, therefore we cannot tell the Council how it should act when the Developers failed to comply with the enforcement notices. I do find, however that by not acting whilst assuring Mr X it would take action, the Council failed to adhere to the principles of good administrative practice, which is fault.
The evidence I have reviewed also shows the Council’s communication with Mr X was unsatisfactory. The Council failed to:

respond to some correspondence from Mr X;
provide Mr X with the updates on its actions;
keep to its commitments;
respond to Mr X’s complaint within the timescales set up in the Council’s complaint policy.

I cannot say, even on the balance of probabilities, whether flooding of Mr X’s garden would have stopped if not for the Council’s failings. The Council’s fault, however, caused Mr X injustice by creating ongoing uncertainty about resolving the problem of flooding to his property, which has been worsening. The Council’s actions combined with the unsatisfactory communication meant Mr X had reasons to expect the Council would take enforcement action to resolve the issue caused by infilling of the ditch. If not for these raised expectations, Mr X might have considered alternative solutions available to private property owners.
Mr X spent much time and trouble communicating with the Council and complaining about flooding to his property. He was getting more and more frustrated by the Council’s delays and unsatisfactory communication.

Agreed action

To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:

Apologise to Mr X for the injustice caused to him by the faults identified. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance when making the apology;
Send Mr X a plan of action following the enforcement notice issued by the Council in March 2024. This plan of action will contain timescales and the Council’s commitment to communicate with Mr X at each stage of the process. If the Council decides not to take any action, it will send Mr X its decision with the reasons.
Pay Mr X £100 to acknowledge time and trouble spent when complaining to the Council.

The Council will provide the evidence that this has happened.

We also recommend the Council within three months of the final decision remind the front-line staff:

From the environmental health team – of the need to keep service users informed of the progress of their cases even when the Council’s legal team is involved, as much as it is possible without compromising the legal process;
From the complaint team - of the need to adhere to the timescales of the Council’s corporate complaint policy.