Summary: Mr D complains the Council failed to assist with issues over a sewage system. The Ombudsman has not found evidence of fault by the Council. He has completed the investigation and not upheld the complaint.

The complaint

1. Mr D says the Council failed to assist with issues about a septic tank and sewage connections to his home. The matters have been ongoing for several years. In particular, he says Building Control should have liaised with the developer carrying out works. He also says the Council had a duty under legislation to liaise with the Environment Agency. He further refers to the Council threatening to take legal action against him and a dispute with the developer over fees to connect to the sewage system.

Back to top

What I have investigated

2. Large parts of this complaint fall outside the Ombudsman’s remit as explained below. I have looked at events from November 2018 onwards relating to the actions by the Council.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Environment Agency. (Local Government Act 1974, sections 25 and 34A, as amended)
5. 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)
6. 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)

Back to top

How I considered this complaint

7. I have considered the information supplied by Mr D. I asked the Council questions and carefully examined its response.
8. I have written to Mr D and the Council with my draft decision and considered their comments.

Back to top

What I found

What happened

9. In July 2019 Mr D complained to the Council. He said there was a dispute over the relocation and installation of a replacement communal sewage facility by a developer (the owner of a neighbouring property). He said the Council should have overseen the completion of the works. There had been malpractice and attempts to blackmail him by the developer and the Council should have intervened and overseen what was happening. Building Control Officers should have met the developer to remind them of their responsibilities. In August, the Council asked Mr D for some additional information and explained it would take longer than usual to respond due to the nature of the complaint.
10. On 20 September, the Council sent Mr D its response to his complaint. It said the relevant guidelines were the Environmental Permitting Regulations 2010 and supporting guidance. Under this legislation all the duties on enforcement fell to the Environment Agency not the Council. The Council also had no duty to oversee works to the sewage facility as it did not oversee private projects and had no powers to enforce compliance which fell to the Environment Agency. The Council’s role under the Building Act was to consider applications for a sewage treatment facility. It had visited the site in 2016 and considered the sewage treatment plant was sufficient to serve the properties and had therefore issued a completion certificate. In respect of any potential action against Mr D the Council had written to him in 2017 about this matter and no formal action had commenced. The Council concluded it had no power to enforce compliance with guidelines regulated by the Environment Agency. It also said that disputes over the fees to connect to the sewage facility was a civil matter.
11. On 26 September Mr D wrote to the Council disagreeing with its decision and asking it to consider his case again. He repeated his view the Council should liaise with the Environment Agency and the Council was avoiding responsibility by deflecting to the Environment Agency.
12. On 30 October, the Council sent Mr D its final response. It had reviewed the case and sought legal advice which confirmed its previous position. It reiterated the Environment Agency was responsible for overseeing the Regulations and the Council could not intervene in civil disputes. Mr D wrote again to the Council in November and December. On 5 December, the Council said it had completed its complaints process and Mr D could complain to the Ombudsman.

What should have happened

13. The Council’s Building Control Team issue completion certificates for new sewage treatment plants under the Building Regulations Act 1984.
14. Under the Building Act 1984 the Council can investigate reports of defective drains, under limited circumstances, including private sewers, soil pipes and cesspools that are prejudicial to health or a nuisance. In such cases if the Council finds there is a nuisance it can serve an Abatement Notice.
15. Under the Water Resources Act 1991 the Council can liaise with the Environment Agency only where a drain is leaking and polluting ground water and controlled water, this includes effluent from a septic tank discharging directly into a stream. In such cases the Council should notify the Environment Agency immediately.
16. The Environmental Permitting Regulations 2010 and mandatory guidance refer to conditions that operators of a septic tank must follow. The legislation provides powers to the Environment Agency to enforce compliance.
17. If the Council considers a matter is a civil dispute it will inform a complainant that it cannot assist.

Was there fault by the Council

18. Mr D says the Council failed to assist with sewage issues and should have liaised with the developer and Environment Agency. The Council has already provided Mr D with a detailed response to his complaint. I have carefully considered the evidence and conclude the Council has correctly set out its role and responsibilities to Mr D.
19. The key regulations and guidelines are for the Environment Agency, not the Council, to investigate and consider enforcement action. The Council’s role in such matters is extremely limited. Its Building Control Team had a role in 2016, I am not looking at what happened at that time because Mr D could and should have complained sooner. There is no statutory duty on the Council to oversee any works or to speak to the developer about legislation that is enforced by the Environment Agency. Mr D also refers to the possibility of enforcement action against him by the Council. Again, that is a matter the Council first wrote to him about in 2017 and it falls outside the period I am investigating. Furthermore, the Council has not yet taken any action against him and so I do not see he has been caused an injustice. The Council has correctly set out is role in this matter to Mr D.
20. In respect of a dispute over charges to connect the sewage facility the Council is correct this is a civil matter and it has no requirement to intervene.
21. I appreciate Mr D strongly disagrees with the Council’s decision in this case. However, I see no evidence of fault, the Council has correctly set out its role and responsibilities. The Ombudsman will not question the merits of such decisions in the absence of fault.

Back to top

Final decision

22. I have completed the investigation and not upheld the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman