Summary: Mr X complained the Council failed to properly investigate his complaint about water entering the sub-floor of his property, which he said was caused by defects to his neighbour’s property. The Council was not at fault. It carried out an investigation in line with relevant legislation and decided the matter was not a statutory nuisance.

The complaint

1. Mr X complained the Council failed to properly investigate his neighbour’s property which he said causes his property to flood. Mr X said the Council’s conclusion that the issue is not a statutory nuisance is wrong and he wants the Council to take action against his neighbour.

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The Ombudsman’s role and powers

2. 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 a council’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)
3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. 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

5. We spoke to Mr X about his complaint.
6. I considered the information provided by Mr X.
7. I considered the Council’s response to our enquiry letter.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Statutory nuisance

9. Councils must take reasonably practical steps to investigate complaints about possible statutory nuisances under the Environmental Protection Act 1990. For something to be a 'statutory nuisance' it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premise; or
• Injure health or be likely to injure health
10. This includes any premises in such a state as to be prejudicial to health or a nuisance.
11. There is no set level of what constitutes a statutory nuisance. The council’s role is to make a judgement about whether the matter complained about is a statutory nuisance. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the nuisance.
12. Under the Act, members of the public may bring their own case to the Magistrates’ Court and ask it to serve an abatement notice.

Drainage

13. The law says that property owners must use and keep their property and land in a way that does not increase the risk of flooding to a neighbouring property. The law requires property owners to keep drains clear and ensure they do not drain water into a neighbour’s property.
14. Property owners have a natural right of drainage which allows water that flows naturally across land to flow downhill naturally to a neighbour’s land. For example, rainwater which falls on a lawn is allowed to flow downhill through a neighbour’s land.

What happened

15. Mr X lives in a semi-detached property on a residential street with his partner, Ms Y. The street is on a hill and as such the property adjoining Mr X’s property is higher up. Mr X bought the property in 2016, however started to renovate it in 2018.
16. In December 2018 Mr X lifted some of the floorboards in the property to carry out re-wiring. He noticed that following a period of heavy rain the sub-floor filled up with water by a few inches. Mr X initially carried out his own investigation which he said showed water entering his neighbour’s wall cavity at the front of the property, then drained down into his cavity and then into his sub-floor. Mr X decided to dig a trench under his front window, to check whether water was entering through the front wall, which it was not. Mr X said he thought his neighbour’s patio acted as a reservoir when rain fell that gradually drained into their cavity and then subsequently into his sub-floor.
17. Mr X approached his neighbours about the matter and asked if he could look at their sub-floor. However, the neighbours refused Mr X access to their property and then refused to discuss the matter any further.
18. Mr X reported the issue to the Council as a statutory nuisance saying that defects to his neighbour’s property were causing the water in his sub-floor. The Council attended in December 2018 and carried out a test by placing red dye on the neighbour’s patio pointing. The utility company also visited Mr X and tested whether there was a foul drainage or pipe issue but found nothing.
19. A few days later Mr X contacted the Council with photographs of water in his trench and the sub-floor. The water in the trench outside showed a distinct red colour. The water in the sub-floor showed a less distinct colour of red. Based on these results the Council decided it needed to do further tests to try and confirm how the red dye got into both the trench and the sub-floor, particularly as it took two days for it to appear.
20. The Council attended again at the start of January 2019 to carry out some further tests. It poured buckets of water onto the neighbour’s patio flags. The Council observed the water seep downhill off the patio but it did not enter the sub-floor. The Council checked the neighbour’s property but noticed no sign of any damp. Records show Mr X told the Council the flooding into the sub-floor only seemed to happen during periods of strong wind and rain. Mr X thought his neighbour’s airbricks were at fault because they were too close to the ground. The Council injected some green dye into the neighbour’s airbricks and advised Mr X to contact it if any of the dye went through to his sub-floor. There is no record of any green dye entering Mr X’s sub-floor following this test.
21. In February 2019 Mr X contacted the Council again to say he had more water in his sub-floor. The Council attended again in March 2019 and carried out more tests. It put red dye in the guttering of eight of Mr X’s neighbouring properties and put some green dye in his neighbour’s patio flags. Mr X called the Council again a few days later and said he had found green dye in his trench however no dye was present in the sub-floor.
22. Mr X had submitted an insurance claim for the flooding in his sub-floor. A surveyor visited and concluded the problem was also caused by groundwater. The surveyor shared his conclusions with the Council.
23. The Council wrote to Mr X with its conclusions. It said as there was no red dye from the gutter test it had ruled out any defects to any neighbouring rainwater drainage or defects to downspouts. The Council said the issue was intermittent and therefore it had ruled out any sort of waste or water pipe leak. The Council said rainwater was falling onto Mr X’s neighbour’s patio flags and then percolating downhill and collecting in the trench. It said some of that water then entered the sub-floor as proved by its first red dye test. The Council said no green dye entered the sub-floor following its test of the airbricks. The Council said in its opinion the likely cause of the water in the sub-floor was groundwater which is recharged by heavy rain. It said there was no evidence of damp and it was not impacting Mr X’s habitable room. Therefore, the Council said it did not amount to a statutory nuisance. The Council said the design of the properties on Mr X’s street allowed for seasonal water ingress. It advised Mr X to use low level tanking or a pump to resolve the issue.
24. Mr X disagreed with the Council’s conclusions. He said the water was dripping down the inside of the wall cavity between the two properties. He said the cause of water was from his neighbour’s side of the wall.
25. The Council had a further discussion with Mr X about the matter. The Council reiterated its opinion that the water in Mr X’s sub-floor was caused by groundwater. It said groundwater is natural and therefore there was nothing more it could do. It said it was not a statutory nuisance. It said the water present was not significant and was solvable by using a pump.
26. Mr X decided to obtain an independent survey. He said the result of his survey proved the cause of the water in the sub-floor was not groundwater. Mr X said the survey supported his view that groundwater was not causing the issue. The Council considered the independent survey and decided it supported its conclusion that the water entering Mr X’s property was rainwater soaked into the ground but not soaking away.
27. Mr X’s insurers instructed solicitors to carry out a further survey. This survey concluded the water entering the sub-floor was not from a natural flow. It said the water was being unnaturally directed from the neighbour’s patio into the cavity and then into the sub-floor. Mr X said this report showed the route of the water was not a natural flow and therefore constitutes a statutory nuisance.
28. The Council considered the further survey. However, it remained of the view that the water was due to groundwater and was not a statutory nuisance.
29. Mr X formally complained to the Council about the outcome of its investigation. The Council wrote to Mr X with its final response. It said its investigation found a link between rain falling on Mr X’s neighbour’s patio and water in his trench and sub-floor. A repeat test however did not show in the sub-floor. The Council said it is following heavy rainfall that water enters his sub-floor. It said there is a long-held position that landowners are not liable for water flowing from their land if the presence of that water occurred naturally. The Council said it accepts water is entering Mr X’s sub-floor however it was unable to identify the source other than the rain falling onto his neighbour’s patio. It said therefore it is not a statutory nuisance.
30. Mr X remained unhappy and complained to the Ombudsman.
31. Following Mr X’s complaint to us he raised a further concern. Mr X said he had received a letter from his neighbour’s solicitors about the matter which referred to the insurance surveyor’s report carried out following his insurance claim. Mr X complained the Council had disclosed the report to his neighbours without his permission. He said he had also found out that his neighbour’s son had a business relationship with the Council. Mr X said therefore this proved the Council’s investigation was biased and not carried out objectively.
32. I have not investigated this element of Mr X’s complaint. This is because it is a complaint about the Council’s handling of information which the ICO is best placed to investigate. It is open for Mr X to complain to the ICO about this and I consider It reasonable for him to do so.

My findings

33. The Environmental Protection Act states councils must take such steps as are reasonably practicable to investigate complaints about matters that could be a statutory nuisance. The evidence I have seen shows the Council took appropriate steps in response to Mr X’s reports of water entering his sub-floor, caused he said by defects to his neighbour’s property.
34. It visited Mr X on three occasions to carry out dye tests to try and establish the source of the water entering Mr X’s property. It carried out tests on his neighbour’s patio and the airbricks entering the wall cavity. It also carried out dye tests on the guttering of several neighbouring properties. It considered Mr X’s evidence including the insurance surveyor’s report and two further independent reports. The Council concluded the water entering Mr X’s sub-floor was groundwater caused by rain. The law says that landowners have a natural right of drainage which allows, for example, rain to flow naturally downhill to a neighbour’s land. It therefore said the presence of the water was not a statutory nuisance.
35. There is a clear difference of opinion of how the water is entering Mr X’s sub-floor. However, the Ombudsman is not an appeal body. We cannot substitute our judgement for that of the Council’s and we cannot criticise a council’s decision unless there was fault in the way it made its decision. The Council carried out an investigation into Mr X’s complaint in line with the relevant legislation. The Council considered independent surveys and reports about the matter. The Council officers used their professional judgement and concluded the water entering Mr X’s sub-floor was caused by groundwater and did not amount to a statutory nuisance. The Council followed the process we would expect and is not at fault.
36. The law allows Mr X to bring his own action at the Magistrates’ Court. It is open for Mr X to do this if he wishes.

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Final decision

37. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman