Summary: Mrs B complained that the Council has not taken enforcement action when a neighbouring landowner failed to do work to alleviate flood risk to Mrs B’s property. The Council investigated the issue and paid for contractors to find the solution. It then properly considered whether to take enforcement action against the landowner who did not complete the work needed. There was no faut by the Council when it decided not to take further enforcement action.

The complaint

1. Mrs B complained that the Council failed to take effective action to resolve the flooding of her garden caused by her neighbour’s poorly maintained culvert. It also failed to keep her informed of what was happening.
2. Mrs B says that as a result of the flooding she has had to place 40 sandbags around her property, her patio is unusable, and she is having a land drain installed at her own expense. Mrs B says that the Council has caused her distress and frustration.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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What I have and have not investigated

5. 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)
6. Mrs B complains about events that began in 2020. She complained to the Ombudsman in January 2025. The risk of flooding was ongoing, and the Council has taken some action, which resolved some of the initial problems it had identified. However, in 2023, the Council found more causes of the flooding and so I have started my investigation with events from August 2023 and ended with events in November 2024, when the Council responded to Mrs B’s stage two complaint.

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How I considered this complaint

7. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
8. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The law

9. The Council has powers under the Land Drainage Act 1991 to enforce obligations to maintain flow in a watercourse and repair watercourses, bridges and other structures in a watercourse.
10. 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 on any person who has responsibility for the watercourse.
11. If any person acts in contravention of, or fails to comply with, any notice served under the Land Drainage Act 1991, the Council 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))
12. The Act also gives individuals the right 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 removal of any drainage work in connection with such a ditch.

What happened

13. In 2020, Mrs B’s husband reported to the Council that he was having problems with drainage on neighbouring land. The Council investigated the issues. It visited the site several times. There were two neighbouring properties (Landowner X and Landowner Y), which could be contributing to the flooding of Mr B’s garden. The Council asked the neighbouring landowners to expose any land drainage so it could find where a culvert might be and check for blockages. A culvert channels water to prevent flooding.
14. In July 2020, the Council tried to complete a CCTV investigation of Landowner X’s property, but this could not be completed due to a blockage. The Council also wrote to Landowner Y but they did not respond and so in February 2021, the Council served a notice on Landowner Y. In June 2021, the Council found no evidence of a culvert on Landowner Y’s property and so they did not need to take further action.
15. In the meantime, Landowner X was having difficulty identifying the problem and so the Council visited the site again in November 2021. The Council agreed to arrange and pay for further CCTV investigations but the Landowner would need to first clear the blockage. By January 2022, they had not done the work, and so the Council served a notice on Landowner X requiring them to clear the blockage within the next month.
16. In March 2022, the Council served a notice on Landowner X that it intended to come on site to clear the blockages.
17. In August 2023, the Council met with Mrs B and her neighbours, and Landowner X on the site. Landowner X said that the culvert was too small and the flooding was caused by defective highways gullies.
18. The Council met with Mrs B and neighbours again in November 2023. It explained that the blockages had been cleared but the water flow had been diverted and this was impacting on properties downstream, such as Mrs B’s. The Council arranged and paid for a survey to find where the Landowner X might connect into another culvert on neighbouring land to alleviate the flooding. The Council also paid for the highways gullies to be checked and tested.
19. In February 2024, the Council having completed its investigations, concluded that the culvert was adequate for water to flow and the highways gullies were not causing an issue. The Council wrote to Landowner X requiring them to resolve this and offering to meet on site to explain what was needed. The Council relayed its findings and plan of action to Mrs B’s councillor and her MP to pass on.
20. In March 2024, the Council met with Mrs B and Landowner X, as well as other neighbours and councillors to explain the situation on site. In April 2024, the Council met again with Mrs B and explained that it would not be carrying out work and this was for Landowner X to do. It explained that it would not take enforcement action against Landowner X because the cost of taking the work outweighed the fine that could be imposed and it would not result in the work being done. The Council told Mrs B that she could seek legal advice to take private action.
21. I asked the Council how it had considered its power to serve notices, prosecute for lack of compliance, and do the work in default. The Council explained that it does not have a formal written policy of when it will do work required of a landowner. However it has explained that it can only do flood alleviation work where it will have the greatest impact. It has to show that the benefit of the scheme outweighs the costs.
22. The Council says it has estimated the cost of doing work on Landowner X’s property to be at £100,000. It cannot access funding for this via central funds and so would have to meet the costs itself. The Council has explained that it cannot prioritise these works because the costs outweigh the benefits and it has to use its limited funds for work that will have a greater impact. The Council has added that the water had not come into Mrs B’s home and it would not normally do work in those circumstances. The Council says that the landowner could alleviate the flooding issues by doing the work to the culvert.
23. In summary, the Council has explained that it reached its decision not to do the work or prosecute Landowner X having taken into account the estimated costs of remedial works, that it would not get central funding, the fact that the issue has been directly caused by the landowner, the level of fine that would be applied to the landowner, and that no internal property flooding has been recorded.

Findings

24. The Council’s enforcement powers are discretionary and so I have looked at how it made its decision not to take further enforcement action following inspections in 2023 and 2024, including serving further notices, prosecuting landowners and doing the work itself.
25. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
26. The Council has responded to Mrs B’s contact, investigated the situation, including paying for surveys. It served notices to deal with the blockages it found initially. However, it later found that the flow had been diverted and further work was needed.
27. Some councils have specific policies on how it will prioritise its resources and deal with work on ditches and culverts. This Council does not have a formal policy on this. It is not required to have one, but it might want to consider developing a formal policy to aid its decision-making and so that the public might better understand its decisions.
28. In this case, the Council has properly considered whether it should take further enforcement action. It has explained that it does carry out some flood prevention work, and so I cannot say that it has applied a blanket policy where it never does work in default when landowners do not do what is required to alleviate flood risk.
29. The Council estimated the cost of the work needed and weighed this against the benefits. It had visited the site several times and met with Mrs B and her neighbours as well as local councillors, and so it had a good understanding of the impact of the flood risk on Mrs B and other properties. Although I can see that Mrs B would benefit from the work, it is for the Council to decide whether to use its resources to fund this. There is no fault in how the Council has reached its decision and so I cannot criticise the final outcome.

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Decision

I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman