Summary: Ms X complained the Authority wrongly required her to get consent for works on her land, imposed unreasonable conditions on that consent, failed to explain its decisions, wrongly charged her an application fee, failed to apply the byelaws properly and failed to respond to her complaint properly. I have found no evidence of fault.

The complaint

1. The complainant, Ms X, complained the Authority:
• unreasonably required her to get consent for works on her garden when it does not need access to her garden and has not imposed similar limits on her neighbour’s land;
• charged her £100 for the application fee when it should have been £50 at most or free;
• closed off reasonable options during the pre-consent process and told her in advance what it would and would not consent;
• failed to clarify the basis on which it believes it has an enforceable easement over her garden;
• included further conditions on the consent document which it had not discussed with her and which override her statutory rights;
• failed to properly consider her complaint and misquoted and misapplied legislation; and
• undermined the independence of the vice chairman at stage two of the complaint and failed to consider the legal points she raised.
2. Ms X says the Authority’s actions have caused her great stress and uncertainty which means she has not been able to enjoy her garden properly.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

Back to top

What I have and have not investigated

6. I have investigated the procedural issues Ms X has raised. I have not investigated Ms X’s concerns about the lawfulness of the Authority’s actions and nor have I considered whose interpretation of the byelaws is accurate. Only a court can undertake those actions.

Back to top

How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms X's comments;
• made enquiries of the Authority and considered the comments and documents the Authority provided.
8. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Land Drainage Act 1991

9. The Land Drainage Act (the Act) established internal drainage boards (IDB). They are independent bodies responsible for land drainage in areas of special drainage need. IDB undertake works to reduce flood risk to people and property and manage water levels for agricultural and environmental needs within their district. They have permissive powers to supervise matters relating to the drainage of land within their districts.
10. Section 14 of the Act gives IDB the following powers:
• to maintain existing works;
• to improve any existing works;
• to construct new works.
11. Section 64 of the Act provides an IDB with powers of entry in certain circumstances.
12. Section 66 of the Act provides an IDB with the power to make byelaws.
13. Byelaws made by an IDB shall not be valid until they are confirmed by the relevant Minister.

Witham Fourth District Internal Drainage Board Byelaws

14. Byelaw 2 makes clear the byelaws have effect within the District and refer to watercourses which are for the time being vested in or under the control of the IDB.
15. Byelaw 9 covers the notice to cut vegetable growths. It says:
• Any person having control of any watercourse shall, upon receipt of a notice served on him by the Board requiring him so to do, cut down and keep cut down all trees, willows, shrubs, weeds, grasses, reeds, rushes or other vegetable growths growing in or on the bank of a watercourse, within such reasonable time as may be specified in the notice, and shall remove such trees, willows, shrubs, weeds, grasses, reeds, rushes or other vegetable growth from the watercourse immediately after the cutting thereof.
• Provided that, where a hedge is growing on the bank of a watercourse, nothing in this Byelaw shall require more than the pruning of the hedge so as to prevent it from growing over or into the watercourse, and the removal of the resultant cuttings.
16. Byelaw 10 covers obstructions within 9 metres of the edge of the watercourse. It says:
• No person without the previous consent of the Board shall erect any building or structure, whether temporary or permanent, or plant any tree, shrub, willow or other similar growth within 9 metres of the landward toe of the bank where there is an embankment or wall or within 9 metres of the top of the batter where there is no embankment or wall, or where the watercourse is enclosed within 9 metres of the enclosing structure.
17. Byelaw 17 covers fencing. It says no person shall, without the previous consent of the Board:
• cut, pare, damage or remove or cause or permit to be cut, pared, damaged or removed any turf forming part of any bank of any watercourse, or dig for or remove or cause or permit to be dug for or removed any stone, gravel, clay, earth, timber or other material whatsoever forming part of any bank of any watercourse or do or cause or permit to be done anything in, to or upon such bank or any land adjoining such bank of such a nature as to cause damage to or endanger the stability of the bank;
• erect or construct or cause or permit to be erected or constructed any fence, post, pylon, wall, wharf, jetty, pier, quay, bridge, loading stage, piling, groyne, revetment or any other building or structure whatsoever in, over or across any watercourse or in or on any bank thereof.
18. Byelaw 31 says:
• Nothing in these Byelaws shall authorise the Board to require any person to do any act, the doing of which is not necessary for securing the efficient working of the drainage system of the District or to refrain from doing any act, the doing of which does not adversely affect the efficient working of the drainage system of the District.

The IDB 9 metre easement policy

19. This sets out what will and will not be considered for relaxation of byelaw consent.
20. Fencing no higher than 1.2 metres between 0.5 metres and 1 m from the edge of the watercourse will be considered for consent. However, should the fence restrict the access of maintenance plant they will not be consented. Fencing higher than 1.2 metres will be consented no closer than 6 metres from the top edge of the watercourse. Posts should be temporary and not concreted in. Where Board access is required for maintenance equipment gates must be provided and where locked the Board provided with a key. Consents will include a condition regarding removal of the fence if required by the Board.
21. Gravel or chipping roadways are permitted no closer than 1 metre from the top edge of the watercourse. Permanent surfaces such as tarmac or concrete are not permitted within 9 metres of the top edge of the watercourse.
22. No permanent structures will be consented within the 9 metre byelaw easement.
23. In certain circumstances the Board will consider an application to reduce the byelaw easement from 9 metres to 6 metres from the top edge of the watercourse or centreline of the pipe for temporary structures. In certain circumstances where the proposed works are not detrimental to securing the efficient working of the drainage system the Board may consider reducing the easement further upon application.
24. All trees are to be planted 9 metres away from Board maintained watercourses. No relaxation in byelaw distance for trees unless approved by a meeting of the Board.
25. Where the Board already has no machine access such as for domestic gardens, hedges adjacent to watercourses will be consented but remain the responsibility of the property owner. The owner should maintain sufficient space between the hedge and the edge of the watercourse to safely carry out maintenance. The Board reserves the right to ask for hedge removal for maintenance purposes. This work will be at the owner’s cost.
26. For new development and sites where the Board has machine access hedges will not be consented closer than 9 metres from the top edge of the watercourse.

The IDB’s Development and Consent Control Guidance

27. This covers the Board's requirements relating to:
• consent under section 23 of the Act;
• consent requirements made for the purpose as set out in section 66 of the Act;
• surface water developer contribution framework for charging for surface water discharges into the district.
28. The Board is duty-bound under the Act to grant or refuse consent within two months of the consent application being received and the Board cannot unreasonably withhold consent. However, the Board may give consent subject to reasonable conditions.
29. The Board have byelaws to protect the designated watercourses and structures and consent must be obtained from the Board to allow for certain activities. Breaching the byelaws would be a criminal offence and the Board may take remedial action and recover its expenses if the need arises.
30. The most common byelaw relaxation applied for is byelaw 10 relating to obstructions within 9 metres of the edge of the watercourse. In some instances the Board will relax this byelaw to allow for certain activities to take place such as the erection of certain types of fencing.
31. Upon approval of an application and before a granted consent is issued an application fee of £50 and an administration fee of £50 will be charged.

What happened

32. A company Ms X represents bought some land next to her property which is also next to an IDB maintained watercourse. That land was incorporated into an existing residential garden. As Ms X is the one that has corresponded with the Council I will refer to Ms X throughout. Ms X applied for consent for some works which included a fence near the top of the bank, gates, a hedge and a gravel driveway. The IDB granted permission with the following conditions:
• fencing within the 6 metre byelaw easement must be no higher than 1.2 metres;
• posts must be driven and not concrete foundations. The Board reserves the right to ask for the fence and gates to be removed, if required, in its fulfilment of its duties under the Act;
• access for the IDB not to be restricted;
• no planting or trees or hedges within 6 metres easement;
• any planting of hedges outside the 6 metre easement must consider the growth of the species with overhanging branches or foliage not infringing on the 6 metre byelaw easement;
• the Board will not be responsible, or pay any costs, due to damage caused to surfaces or structures within the 6 metre easement in its fulfilment of its duties under the Act;
• the applicant or their successors will be held responsible for the full cost of any subsequent repair or maintenance of the works and/or watercourse attributable to their installation, operation, use, maintenance and/or removal;
• for works consented within 9 metres of the edge of watercourses under the Board control the applicant or their successors will be held responsible for the removal of the works if so required by the Board.
33. In January 2025 Ms X put in a complaint as she did not consider she needed consent and that the IDB had wrongly applied the byelaws. The IDB responded on 18 February and rejected Ms X’s concerns.
34. Ms X wrote to the IDB to raise further concerns 6 March. The vice chairman of the IDB met Ms X on site on 23 March and responded to her complaint at stage two on 26 March.

Analysis

35. Ms X says the IDB unreasonably required her to get consent for limited works on her garden when consent is not required. Ms X therefore says the IDB should not have charged her an application fee.
36. I am satisfied the IDB explained to Ms X she needed consent under its byelaws, rather than due to the requirements of the Act. I set out in paragraphs 14-18 what the IDB byelaws state. Byelaw 10 is clear a property owner needs consent before erecting any building or structure within 9 metres of the edge of a watercourse. As Ms X wanted to erect a fence and plant hedging within 9 metres of the edge of a watercourse I cannot criticise the IDB for requiring her to apply for consent. I am also satisfied the IDB procedures set a payment of £100 for an application, which is what the IDB charged Ms X. I therefore have no grounds to criticise it.
37. In reaching that view I am aware Ms X says the IDB has not imposed similar restrictions on her neighbour’s land. Ms X has provided photographic evidence showing what appear to be structures erected on land within 9 metres of the edge of the watercourse. In those circumstances I can understand why Ms X may feel the IDB has dealt with her differently.
38. However, I have seen the documentary evidence which shows the IDB has issued consent to Ms X’s neighbours and those consents show the IDB imposed the same conditions on Ms X’s neighbours as it imposed on her. I therefore could not say the IDB treated Ms X differently.
39. I appreciate Ms X raises concern as her neighbours have structures within 9 metres of the watercourse removed from her neighbour’s land. However, I am satisfied that is not as a result of any different treatment to Ms X So, I have no grounds to criticise it.
40. I also appreciate Ms X says the IDB does not need access to her garden to carry out work to the watercourse. Ms X says the IDB has, up to this point, carried out all maintenance work on the highway. I am satisfied the IDB has considered that point and explained why it considers it necessary to have access to Ms X’s garden to carry out any required works. As I have made clear, it is not my role to comment on the merits of the IDB decision unless there is evidence of fault in how it has reached its decision. I have found no evidence of fault here.
41. Ms X says before she applied for consent she met with IDB officers to discuss her proposals for the garden. Ms X says the IDB closed off reasonable options during those discussions and told her in advance what it would and would not consent. Ms X therefore says the IDB acted unreasonably.
42. I cannot comment on what was said during verbal conversations. However, it is not fault for the IDB to tell Ms X about the restrictions on the type of activity allowed as part of its byelaws. Nor is it fault for the IDB to explain to Ms X the implications of breaching the byelaws without consent. I am satisfied although the IDB byelaws state it will not allow structures within 9 metres of the watercourse it has, nevertheless, relaxed that in Ms X’s case to allow fencing and hedging within 6 metres. I therefore could not say the IDB had fettered its discretion. I appreciate the IDB has allowed works which are not what Ms X wanted. However, that is not because of any fault by the IDB.
43. Ms X says the IDB failed to clarify the basis on which it believes it has an enforceable easement over her garden. I am satisfied though the IDB has explained the Act provides it with a power of entry in certain circumstances rather than referring to an enforceable easement. As that is in accordance with what the Act says I have no grounds to criticise it.
44. Ms X says in issuing a consent document the IDB included conditions which it had not discussed with her and which override her statutory rights. Ms X is referring here to the conditions about IDB’s ability to access her garden and it limiting its liability for damage it may cause while carrying out maintenance. While I understand Ms X’s concern, the evidence I have seen satisfies me the conditions imposed on Ms X’s consent are the same as the conditions imposed on neighbour consents.
45. I also appreciate Ms X has referred to articles 8 and 14 of the Human Rights Act and has raised concerns about the conditions breaching those articles. It is not the Ombudsman’s role to decide whether the IDB has violated Ms X’s human rights. Only a court can determine that. I also note the articles Ms X has referred to are qualified, rather than absolute rights.
46. I am satisfied the IDB has explained why it considers it necessary to have access to Ms X’s garden to maintain the watercourse in certain circumstances. I am also satisfied the IDB has explained why it has included the liability condition to protect it. I therefore have no grounds to criticise it. It will be open to Ms X to take legal action should the IDB damage her garden during any maintenance works.
47. Ms X also says the IDB has failed to consider byelaw 31. I set out what that byelaw states in paragraph 18. Ms X says because none of the works she wants to undertake affect the flow of the watercourse the IDB should not have asked her to seek consent. Again, I am satisfied the IDB has explained why it considers there are circumstances in which it is necessary for it to have access to Ms X’s garden to carry out maintenance works to ensure the efficient working of the drainage system. I therefore could not say the IDB had failed to consider byelaw 31. So, I have no grounds to criticise it.
48. Ms X says when responding to her complaint the IDB did not address her concerns and misquoted and misapplied legislation. I appreciate Ms X has set out in detail why she believes the IDB has misinterpreted various parts of its byelaws. I am satisfied though the IDB has explained why it does not agree.
49. It is not the Ombudsman’s role to interpret either the Act or byelaws. Nor is it the Ombudsman’s role to adjudicate on different interpretations of a byelaw. Only a court can do that. As I am satisfied the IDB considered the representations Ms X made and has addressed those concerns I have no grounds on which I could criticise it. I appreciate Ms X continues to disagree with the IDB’s interpretation of the byelaws. However, if Ms X wants to challenge that she will need to take legal action.
50. Ms X says the IDB undermined the independence of the vice chairman’s consideration of her stage two complaint. Ms X says when the vice chairman visited her he verbally agreed the IDB could carry out all maintenance from the highway, the IDB did not require a second gate and hedging and temporary fencing were not contentious. Ms X says that contrasts with the stage two response which provided a different justification. Ms X therefore raises concerns about the independence of the complaint process.
51. I cannot comment on who said what during a verbal conversation between Ms X and the vice chairman. The vice chairman has since said though Ms X’s recollection of what was discussed is not his recollection. The vice chairman has also confirmed he wrote the stage two letter and I note it is signed by the vice chairman. I therefore have no grounds to criticise the IDB as there is no evidence of fault in the complaint process.
52. Ms X says the IDB failed to provide the vice chairman with a copy of her letter of 6 March 2025 before he visited. The IDB accepts that although it says it discussed the content of Ms X’s letter with the vice chairman before his visit. Irrespective of that I am satisfied the vice chairman had access to Ms X’s letter of 6 March 2025 before he sent her the stage two response. I say that because I note Ms X provided that letter direct to the vice chairman. I therefore do not consider that warrants a finding of fault.

Back to top

Final Decision

53. I find no fault.

Back to top

Investigator's decision on behalf of the Ombudsman