Summary: The Council was not at fault for how it handled Mr X’s reports of his neighbour removing a drainage outlet. The Council properly considered whether it should take action.

The complaint

1. Mr X complained on behalf of himself and two neighbours (Mr and Mrs Y) that the Council failed to properly investigate and take action about another neighbour’s actions, including removal of Mr X’s drainage outlet and building works. Mr X said the Council ignored new harm caused by that neighbour’s actions.
2. Mr X said this has resulted in effluence pooling on his land, property damage, increased flood risk, and blocked access to the watercourse. He said it caused him and Mr and Mrs Y stress and financial loss.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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What I have and have not investigated

6. Mr X told the Council that his neighbour, N, had interfered with the drainage for waste and flood/surface water. Mr X told the Council N had done this by removing a drainage outlet and doing some building works.
7. The building works do not fall under the Council’s remit. The Ombudsman has considered Mr X’s complaint about the other council which was responsible for the building works. For this reason, I have not included that aspect in my investigation.
8. I note below that Mr X has also complained to us about the internal drainage board involved in this issue. I have therefore not investigated this body’s actions.
9. I have investigated how the Council considered its powers when responding to Mr X’s complaint.

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How I considered this complaint

10. Mr and Mrs Y have given written consent for Mr X to represent this complaint for them. I therefore consider Mr X is a suitable person to represent this complaint on behalf of Mr and Mrs Y as well as himself.
11. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

What should have happened

12. Most councils have responsibilities as the Lead Local Flood Authority (LLFA). The Land Drainage Act 1991 gives most LLFAs powers to regulate ordinary watercourses to maintain proper flow and carry out flood risk management work.
13. Section 25 of the Land Drainage Act 1991 gives powers to require works for maintaining flow of watercourse. It says where the proper flow of water in any ordinary watercourse is impeded, then the drainage board may take action.
14. Section 19 of the Flood and Water Management Act 2010 sets out what LLFAs should do when there is a flood. It says LLFAs must consider whether it is necessary or appropriate to investigate:
• which risk management authorities have relevant flood risk management functions; and,
• whether each of those risk management authorities has exercised, or will exercise, those functions in response to the flood.

What happened

15. Mr X and Mr and Mrs Y live near a stream. Their wastewater drains into a local stream by way of a water treatment plant. More than 20 years ago, this stream was diverted.
16. In 2021, Mr X complained to the Council about the diverted stream. The Council and the internal drainage board investigated. The Council said it was too late to investigate the stream being diverted. It said it was a private issue between Mr X and his neighbour, N, because Mr X and N disagreed about who owned the land.
17. In 2024, Mr X told the Council N had removed his drainage outlet. The Council told Mr X it had not changed its position. It said it could not intervene, and it was a private matter between neighbours.
18. The Council said the local internal drainage board needed to consent in order to address the issue caused by the removal of Mr X’s drainage outlet. The Council said there was an issue about land ownership and boundaries that needed to be resolved first because consent cannot be given without landowner permission. The Council said it could not resolve this. It recommended Mr X take the issue to court.
19. The Council told Mr X he could pursue his rights as set out in his deeds through the civil courts because they can compel N under the existing covenant. The Council said a court ruling would support an application to the internal drainage board. The Council said it would not do another site visit because it would not change its position.
20. Mr X told the Council it had a duty to take enforcement action under the Flood and Water Management Act. The Council said it had a power, not a duty. It said the matter related to individual private property and did not result in flooding either upstream or downstream of the property, or damage to public infrastructure.

Analysis

21. Mr X complained the Council failed to properly investigate and take action about his neighbour (N) removing his drainage outlet. He said this failure means the pooling effluence, property damage, increased flood risk, and blocked access got worse.
22. The Council told Mr X it had not changed its position from 2021, which was that it would not intervene and it cannot provide the outcome Mr X wants. The Council said it would not issue N with an enforcement notice for the obstruction or diversion of the watercourse. This was because there was a boundary dispute between Mr X and N which needed to be resolved. Once that was resolved, the internal drainage board could give consent to renew the connection. But consent cannot be given without landowner permission. And Mr X and N disagree about who is the landowner.
23. Mr X complained the Council, as Lead Local Flood Authority, must investigate flood risk, obstruction, or unauthorised alterations to water flow as set out in section 19 of the Flood and Water Management Act 2010.
24. I do not agree this is what section 19 says. I have outlined it above (paragraph 14). The first test of that section was not met: there was no flood which meant there was a duty for the Council to consider whether it was necessary or appropriate to investigate. A flood risk is not the same as a flood. Therefore, I do not agree that section 19 is relevant here.
25. Mr X said the Council relied on section 14 of the Land Drainage Act but did not consider section 25. Mr X said section 25 imposes a mandatory duty to act where works impede flow, increase flood risk, cause damage or interfere with lawful drainage. Mr X said this is a statutory duty.
26. I do not agree this is what section 25 says. As I set out above (paragraph 13), section 25 is about what action the drainage board may take. The Council is not the internal drainage board. So, I do not agree that this is relevant here. I note that Mr X has complained to us about the internal drainage board in this case.
27. The Council had a power, but not a duty, to take action under the Land Drainage Act. I find the Council properly considered whether to use its power. The Council decided not to. This was a decision the Council was entitled to make. The Council explained what action Mr X can take to resolve the issue. This was appropriate.
28. I find no fault in how the Council made its decision not to take action in this case. Therefore, I cannot question the merits of that decision (see paragraph three). I find no fault with the Council.

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Decision

29. I find no fault.

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Investigator's decision on behalf of the Ombudsman