The Ombudsman's final decision:
Summary: Mr X says the Environment Agency is at fault for not acting to address flooding caused by an unauthorised dam located in a primary watercourse. The Ombudsman has not found any evidence of fault by the Environment Agency and for this reason he has ended his investigation of this complaint.
- Mr X says the Environment Agency is at fault for not acting to address flooding caused by an unauthorised dam located in a primary watercourse.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a body’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)
How I considered this complaint
- As part of my investigation I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Agency and considered its response and information it provided. I set out my initial thoughts on the complaint in a draft decision statement. I discussed my draft decision with Mr X and considered his comments on it.
What I found
- A person who owns land or property next to a river is known as a riparian owner and is responsible for the maintenance of their section of the watercourse. This includes making sure it is free from obstructions.
- The Agency has responsibility for managing risks from flooding from main rivers. It can carry out flood risk management works but does not have a duty to do so. Any works it carries out must be cost effective and in keeping with HM Treasury guidance.
- The Agency can take enforcement action against riparian owners who have blocked a watercourse if it considers this is expedient.
- A watercourse runs past Mr X’s home which he moved into in May 2017. His land began to flood later that year and I understand the same flooding affected nearby land, a highway and a footpath.
- In December Mr X became concerned about the level and speed of the watercourse. He walked along a stretch of the watercourse and found evidence of many blockages. He took photographs and reported them to the Agency and the local county council.
- Officers from the Agency and the council conducted a site visit and identified some small blockages. The Agency removed these using its own workforce. The works took half a day.
- However, Mr X’s problems persisted and the Agency and council carried out another site visit in January 2018. They identified a blockage in the main watercourse causing a diversion into a secondary watercourse.
- The blockage was on land owned by Mr X’s neighbour, Mr Y. The Agency said it would consider the matter.
- The Agency visited other nearby residents including one who said his property had come close to flooding in late 2016. The Agency is concerned that removing the blockage might increase the flood risk to this property.
- The Agency carried out another visit to the site later that month when it met with Mr X. It told him it would see if funding was available to clear any blockages identified during its recent visits.
- In February, the Agency wrote to Mr Y (who is currently living abroad) asking him to remove the blockage within his land. The Agency says Mr Y advised it there was a blockage there when he bought the property some decades ago.
- Between May and December, the Agency tried to meet with Mr Y on several occasions but this was not possible because Mr Y did not return home.
- Meanwhile the Agency told Mr X that it would not be carrying out any works to remove the blockage on Mr Y’s part of the watercourse. This was because:
- removing the blockage may increase the flood risk to other nearby properties;
- balancing the resources needed against the risk of flooding, such work would not be cost effective;
- there is no evidence that removing the blockage would prevent fields surrounding Mr X’s home flooding especially as they are part of the flood plain and will occasionally flood; and
- the legal duty to remove the blockage lies with Mr Y as the riparian owner and not the Agency.
- In a letter to Mr X’s MP the Agency confirmed its position and explained it considered the situation to be a civil matter between Mr X and his neighbour.
- Mr X is unhappy with the Agency’s actions. He says it has failed to:
- acknowledge the extent of the flooding caused by the blockage;
- take enforcement action against Mr Y to remove the blockage; and
- secure funding to undertake works to remove the blockage.
- It is not for the Ombudsman to substitute his judgement for that of the Agency’s officers. Instead he examines the process leading to the Agency’s decisions for evidence of fault.
- I do not consider there is evidence of fault in the process that led to the Agency’s decision. This is because the Agency:
- inspected the watercourse and the surrounding area to ascertain the cause and extent of flooding near Mr X’s home;
- acted to remove some of the blockages it identified, where it considered this was appropriate;
- reminded Mr Y of his responsibilities as a riparian owner and asked to meet with him to discuss the blockage; and
- undertook an assessment of the implications of removing the blockage and the cost effectiveness of doing so and/or taking other enforcement action
- Mr X says the Agency has not had regard to the extent of the flooding caused by the blockage. I do not agree. The Agency has visited the site and mapped out the flood risk to Mr X’s home and the surrounding area.
- Mr X contends the Agency should secure funding so it can act to resolve the problems he is encountering. However, based on its visits to the site and its assessment, the Agency has decided enforcement action is not expedient. I have found no fault in how it made this decision so there are no grounds on which I can question its merits.
- Additionally, it should be noted there is no duty on the Agency to remove the blockage. It is the responsibility of the riparian owner to do so.
- Mr X has asked why funding was found for the removal of other smaller blockages along the watercourse. I understand that owing, to the nature of the blockages, the Agency could do this using its internal resources.
- I have ended my investigation of this matter as I have not found evidence of fault by the Agency.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman