Environment Agency (18 018 806)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 18 Sep 2019

The Ombudsman's final decision:

Summary: Mr D complains the Environment Agency has not taken into account existing flood defence works when assessing the flood risk for his property. The Ombudsman has found no fault.

The complaint

  1. Mr D complains the Environment Agency has not taken into account existing flood defence works when assessing the flood risk for his property.
  2. He says his property has therefore been wrongly classified as medium risk, leading to higher insurance premiums.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an authority’s 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)
  2. If we are satisfied with an authority’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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How I considered this complaint

  1. I spoke to Mr D about his complaint and considered the information he sent and the Authority’s response to my enquiries.
  2. I sent Mr D and the Authority my draft decision and considered the comments I received.

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What I found

  1. The Environment Agency (the Authority) is the principal flood risk management authority in England and Wales. It is responsible for, amongst other things, forecasting and mapping flood risk. The Flood Risk Regulations 2009 require the Authority to produce and review a flood risk map for England.
  2. The Authority publishes Risk of Flooding from Rivers and Sea (ROFRS) maps, which show the areas at risk, whilst taking into account the presence of any flood defences, their condition and water level information.
  3. In 2008 the Authority carried out a national flood risk assessment. This set out where flooding from rivers and the sea could occur, taking account of the location, type and condition of flood defences, and other measures that reduce flood risk.
  4. Property insurers choose whether they want to use the Authority’s data to inform their decision making. They also use other data, including any that the customer may be able to provide. Insurers will then make an assessment as to whether they can provide insurance cover and under what terms.
  5. Residents can ask the Authority for an Insurance Related Request (IRR) response to update insurance providers on the current mapping and modelling in the local area. This can be used to discuss premium renewals with different insurers.

What happened

  1. Mr D’s property is on a housing development that was built about 20 years ago. The planning permission for the estate required the developer to install flood defences. Mr D says that when he bought his property in 2001, the solicitor’s search found it to be in a low risk flood area (less than 1% chance of flooding).
  2. The Authority’s 2008 national flood risk assessment classified the area Mr D’s property is in as at medium risk of flooding from rivers or sea. This means the chance of flooding is less than 1 in 30 (3.3%) but greater than or equal to 1 in 100 (1%) chance in any given year. An updated ROFRS map for the area was published in 2010, based on this assessment.
  3. Mr D says his home insurance premiums started to increase. Mr D says his property has never flooded and is not liable to flooding due to the flood defences and raised ground levels. He wrote to the Authority about the matter in January 2017.
  4. The Authority sent Mr D an IRR response on 9 February 2017. This said the national flood risk assessment had taken account of flood defences and had classified the area as medium risk. Its mapping had not changed in Mr D’s area since February 2010.
  5. The letter also said the Authority could not “be specific about the current standard of protection from flooding offered by flood defences” and its next update of the ROFRS map “will hopefully reflect the raised ground levels that were created within [Mr D’s estate] when it was constructed”. The Authority intended to begin re-modelling the area river during 2017.
  6. Mr D was therefore concerned that the flood defence works carried out by the developer had not been taken into account and that the Authority had failed to update its maps. He continued to correspond and in October 2018 he wrote to the Authority seeking an update following its re-modelling. Mr D also noted the Authority had dropped a recent planning objection on flood risk grounds against a nearby development, after conceding it was at low risk of flooding even though that development was on lower ground than his estate.
  7. The Authority replied that it had not yet published an updated ROFRS map. This was because modelling of the area had been inconclusive. The Authority was therefore carrying out a more detailed, local model and the ROFRS map would be updated once this was complete. The Authority stated “we are aware that our current flood maps are not representative of the mitigation measures, including land raising, that were put into place during the development.” In relation to the nearby development, it said the majority of it did not lie in the floodplain.
  8. Mr D told the Authority he was seeking legal advice and had contacted his MP. The Authority replied in January 2019. It apologised for the delays in completing the modelling, which it now expected to be completed in Spring 2020. It said the new flood modelling would include up to date ground level information taken from LIDAR topographic surveys. Until this modelling was complete it could not say whether the flood risk of Mr D’s area would change.
  9. Mr D complained to the Ombudsman in March 2019. He said his premiums had increased by 100% in the last two years and were now over £900.

My findings

  1. The Ombudsman has no role in determining the flood risk to Mr D’s property. A complaint to the Ombudsman is not the same as an appeal against the Authority's decision. My role is to look at how the Authority made its decision and whether there was administrative fault. If there was no fault in the way the decision was made, the Ombudsman cannot question it, no matter how much Mr D disagrees with it.
  2. I have therefore considered how the Authority determined Mr D’s property was in a medium flood risk area. It did so after it had completed its national flood risk assessment. It published an updated ROFRS map in 2010 to reflect at assessment.
  3. The Authority told Mr D the ROFRS map would be further updated after more detailed local modelling had been completed. Its correspondence says the updated map “will hopefully reflect the raised ground levels” in Mr D’s estate and that it was “aware that our current flood maps are not representative of the mitigation measures”. This implies the raised ground levels were not considered in the 2010 ROFRS map and it is understandable that Mr D was concerned.
  4. But in response to my enquiries the Authority clarified that the raised ground levels had been taken into account. It sent evidence of the LIDAR topographic surveys from 2003 and 2008, that had informed the ROFRS maps. These show the raised ground levels. It also sent the flood defence data that was used in the national flood risk assessment. This shows the flood defences around Mr D’s estate.
  5. This means that, although the Authority is seeking to improve its modelling of the area to inform a future ROFRS map, the 2010 ROFRS map was based on the national flood risk assessment, which took into account the flood defences, and was informed by surveys showing the raised ground levels. I therefore do not find fault.
  6. The Authority has apologised to Mr D about the delays in its latest flood modelling work. These were because it required data from a third party, which it received in 2018. It also had to survey additional structures and carry out a quality assurance review before it could publish any updated ROFRS map. I have seen no evidence of avoidable drift or delay by the Authority.
  7. The Authority noted that, as Mr D’s area had been classed as medium risk since 2010, this was unlikely to be the cause of increasing insurance premiums in the last few years. Mr D says he has approached the insurance company and the Financial Ombudsman Service to establish the cause of the increase.

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Final decision

  1. There was no fault by the Authority. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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