Summary: Mr B complains the Council has not taken enforcement action against his neighbour who altered a culvert without permission. Mr B says the alteration changed the flow of the watercourse and increased the flood risk to Mr B’s property. The Ombudsman has found fault with the Council which caused Mr B injustice. The Council has agreed to take action to remedy this injustice.

The complaint

1. Mr B complains the Council has not taken enforcement action against his neighbour who altered a culvert without permission. Mr B says the alteration changed the flow of the watercourse and increased the flood risk to Mr B’s property.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’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

4. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and
• Mr B and the Council’s comments on a draft decision.

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What I found

Legislation and Guidance

5. The Council is the drainage board for the City of Leicester for the purposes of the 1991 Land Drainage Act.
6. The Land Drainage Act 1991 prohibits people from:
• Altering a culvert in a manner that would be likely to affect the flow of an ordinary watercourse, without the consent in writing of the drainage board concerned. (Section 23 (1C)).
• Impeding the proper flow of a watercourse. (Section 25 (1)).
7. Section 24 of the Land Drainage Act 1991 states if a culvert is altered, it constitutes a nuisance and the drainage board can serve a notice requiring the person who altered the culvert to abate the nuisance within a period specified in the notice. (Section 24 (1, 2))
8. Section 25 of the Act states that the drainage board can serve a notice on any person who has control of part of a watercourse that has been impeded, owns or occupies the adjoining land or whose actions caused the impediment. The notice will instruct the person to undertake work and by when this must be completed. (Section 25 (3, 5A)
9. Failure to comply with a notice may result in the drainage board undertaking the work and charging the responsible party for the cost of doing so. (Section 24 (4A, 4B) and Section 25 (5A, 5B)

Leicester City Council Environment and Development Department General Enforcement Policy (2002)

10. I have set out below some key points from the policy.
11. The aims of enforcement are to take timely and appropriate action under all available legislation to protect the health, safety, amenity, and economic interests of Leicester citizens.
12. Enforcement includes:
• Inspections to check compliance with legislation;
• Response to complainants about matters which may be dealt with under the legislation;
• Actions taken upon finding a breach of the law.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. In the summer of 2015, Mr B’s neighbour, Mr C, covered a watercourse in his garden with slabs and altered a downstream culverted section. This changed the flow of the watercourse in flood conditions.
15. In June 2016, Mr B’s house flooded. Mr B and his family moved out of their house for six months while the damage was repaired. Mr B contacted the Council and explained his house had flooded because his neighbour altered a culvert. The Council told Mr B it had not received an application from Mr C to alter the culvert and had not approved any work to alter the flow of the culvert.
16. The Council met with Mr B in October 2017. It acknowledged the work carried out by Mr C was an extension to a culvert that required consent, which he did not have.
17. In November 2017 the Council told Mr B it was in discussion with Mr C to remove the unauthorised work to the watercourse. However, the Council’s chronology of its investigation suggests the first time it spoke to Mr C was in December 2017. When it spoke to Mr C, it advised him the work he had undertaken contravened provisions in the Land Drainage Act 1991, which could necessitate enforcement action if not resolved by agreement. The Council briefed the City Mayor on the situation.
18. Mr B asked for an updated in April 2018. The Council said it was trying to resolve the issue informally and if this did not work, it would consider taking enforcement action. The Council provided evidence that it wrote to Mr B’s neighbour.
19. In June 2018 the Council took advice and confirmed Mr C had acted in a manor contrary to the 1991 Land Drainage Act.
20. Mr B asked for another update in August and September 2018. In September the Council told Mr B its negotiations with Mr C were confidential and it could not share any information with him. It said it hoped to have a way forward by the end of the year and would contact him in December. The Council also updated the City Mayor and proposed to take enforcement action if an agreement was not reached.
21. In January 2019, the Council told Mr B it was in discussions with Mr C’s legal representatives to resolve the problem.
22. Mr B formally complained to the Council in July 2019 about the delay. The Council said it was considering a proposal to resolve matters without the need for formal action. In August, Mr B brought his complaint to the Ombudsman.
23. As of November 2019, a resolution is yet to be agreed.

Analysis

24. The Council’s general enforcement policy states enforcement should be timely and it should take appropriate action. It would be reasonable to expect the Council to have investigated the matter, decided if Mr C had contravened the Land Drainage Act 1991 and, if he had, resolved the matter through informal negotiations or enforcement action within six months.
25. Mr B first raised his concern with the Council in June 2016. There was a delay before the Council took any action; it appears there was no contact with his neighbour, Mr C, until December 2017. This delay was considerable and amounts to fault by the Council.
26. The Council took advice and satisfied itself there had been a breach of the Land Drainage Act in June 2018. The Council has powers to ensure breaches of the Act are rectified. However, it appears it has only had informal discussions with Mr C’s legal advisers.
27. It is not unusual for councils to approach issues informally before taking formal action. However, if little progress is being made towards resolving a matter, we would expect them to consider formal action without undue delay. The Council’s general enforcement policy states enforcement should be timely and it should take appropriate action.
28. As of November 2019, the issue is yet to be resolved; a period of almost three and a half years. The Council’s failure to move the investigation forward and consider formal action in a timely manner is fault.
29. Since June 2016, Mr B has worried that his property would flood. If the Council had resolved this matter in a timely manner, much of Mr B’s distress would have been avoided. In addition, Mr B would not have been put to the time and trouble of chasing the Council for an extended period.
30. The Council has agreed to do everything to find a solution. However, if there is further delay Mr B can return to the Ombudsman.

Agreed action

31. Within one month of the final decision, the Council will:
• Pay Mr B £200 for avoidable distress; and
• Pay Mr B £100 for time and trouble he spent pursuing his complaint.
32. Without delay the Council will review the situation and decide whether to take formal action against Mr C. Within the same period the Council will write to Mr B to update him about its decision.
33. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

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Final decision

34. I have completed my investigation and uphold Mr B’s complaint. Mr B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman