Gravesham Borough Council (20 002 980)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 27 Apr 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained the Council failed to take enforcement action in respect of a defective drainage system at a neighbouring property. There is no fault in respect of decisions not to take enforcement action. However, the Council failed to consider the impact on Mr and Mrs X and failed to take action to limit this impact such as requiring more frequent emptying of the neighbours’ septic tank. A suitable remedy for the fault identified has been recommended.

The complaint

  1. Mr & Mrs X complained the Council failed to take enforcement action in respect of a defective drainage system at a neighbouring property and instead allowed revisions to the system which were also not in line with building regulations.
  2. Mr and Mrs X say that contaminated waste water from the defective drainage system has been flooding part of their garden and affecting the foundations of their property for several years.

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What I have investigated

  1. I am only considering the actions of the Council from 2020 onwards. I explain at paragraph 37 below my reasons for not investigating earlier actions.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. The Council does not have an in-house building control service. It works in partnership with other local councils through South Thames Gateway Building Control (STG). Some of the actions of STG are actions on behalf of the Council and are in jurisdiction.
  2. The neighbours adjacent to Mr and Mrs X built a new property in 2017. There is no mains sewerage in the area and so a drainage scheme involving a septic tank and drainage field was installed. The neighbours used a private Approved Inspector (AI) in respect of building regulations for the development. The AI signed off the drainage scheme stating it met building regulations.
  3. In January 2020, Mr and Mrs X commissioned a company to analyse water samples from their property. An agent for the company wrote to the Council on their behalf saying there was a high concentration of faecal matter in an area of Mr and Mrs X’s garden. He said this was a serious risk to health and had advised Mr and Mrs X to cordon off a section of their garden. The Council contacted the agent asking for further information about the sampling undertaken. The Council says the agent did not reply to this request.
  4. In February 2020, the Council discussed the case with a microbiologist at a Public Health England laboratory. While the advice was not specific to this case, information was given saying there is no guidance regarding safe levels for garden soil. The microbiologist also advised that fertilisers on plants can contribute to bacteria levels and samples taken from the surface could be contaminated by animal waste. The Council took the view the results did not indicate enforcement action was required.
  5. Mr and Mrs X continued to correspond with the Council as they believed the drainage system did not meet building regulations and it was contaminating their garden. They pressed the Council to take enforcement action against their neighbours.
  6. STG, on behalf of the Council, emailed Mr and Mrs X on 4 May saying it was highly unlikely it could take action against the neighbour due to the time that had passed since the works were completed. An STG officer visited Mr and Mrs X on 5 May 2020. At this visit Mrs X directed the officer to section 59 of the Building Act 1984 as she believed this gave the Council powers to take action even if the works had been carried out more than two years previously. The officer said had no experience of it being used and agreed to seek legal advice. Some weeks later the Council accepted it could take action under section 59 of the Act.
  7. On 7 May 2020 officers carried out unannounced visits to Mr and Mrs X’s property and the neighbours. The Council says the visits were carried out after a long spell of dry weather which would reduce the likelihood of other non-drainage issues affecting the water levels. Officers noted a section of Mr and Mrs X’s rear garden with a high water content around which Mr X had dug six pits. Officers noted that one pit was dry, four had water at about two inches below the ground’s surface level and one was half full of water. It witnessed some surface water in the affected area and that the rest of the area was saturated. The Council did not witness any foul odours. The Council says the most likely source of the water was the drainage field at the neighbouring property.
  8. The Council says that while it understood why Mr and Mrs X did not want any part of their garden in this condition, it was only a small section in comparison to the rest of the garden and Mr and Mrs X were not prevented from enjoying their garden as witnessed when the officers arrived at the property.
  9. Council and STG officers held a video conference on 14 May to discuss the case. It was agreed that it needed to confirm whether the water at Mr and Mrs X’s property was coming from the neighbours’ drainage system and whether the water contained bacterial content higher than normal and whether it could be prejudicial to health. It was noted that an accredited third party would be employed to carry out sampling.
  10. In June 2020, STG confirmed the drainage field did not comply with building regulations. The neighbours were seeking advice from a drainage contractor to see if a replacement drainage field compliant with building regulations could be installed. The Council agreed that due to COVID-19 a further three month period would be allowed for the works. It also requested the neighbours to empty the septic tank every month and to provide it with copies of the waste transfer notes.
  11. In July the neighbours provided the waste transfer note for July. They also provided a series of emails showing their attempts to progress the works.
  12. After receiving the waste transfer note for August, the Council contacted the neighbours and asked for an update. The neighbours advised that the percolation test would not begin until 29 October and that if this test was passed the works would not be completed until January 2021. The Council advised the neighbours that they would need to research alternative contractors and provide evidence of doing this.
  13. An STG officer visited the neighbours on 29 October to witness the percolation test. The outcome was that a drainage field was not viable at the site. The neighbours said they would contact the Environment Agency to find out if a borehole soakaway was a viable option. The neighbours submitted an application to the Environment Agency for a borehole soakaway on 12 December 2020. The neighbours informed the Council that it could take up to 13 weeks for the Environment Agency to determine the application and that potentially the works may not be completed until the Summer of 2021.
  14. The Council advised the neighbours to start emptying the septic tank every week until a suitable drainage system was installed. It said this should start from the first week of January 2021. The neighbours confirmed they would do this.

Analysis

  1. It was established in June 2020 that the drainage field at the neighbouring property did not comply with building regulations. STG say there was an error in the calculations carried out by the AI regarding the area required to drain the water discharged from the treatment plant meaning the capacity of the drainage line was reduced by two thirds. It also says the drainage system was laid to a herringbone design rather then the recommended loop design.
  2. The drainage system at the neighbouring property was approved in error. However, I am not persuaded this error was the fault of the Council. Mr and Mrs X’s neighbours did not use the Council’s building control service but instead employed a private approved inspector. Regulations allow a certified inspector to carry out building control functions and that is what happened in this case. While the certificate of approval is lodged with the Council, there is no basis or requirement for it to check or verify the information contained in an approval notice. There is no fault in the Council accepting the decision of a certified AI. It is possible Mr and Mrs X may have a complaint or could take legal action against the AI.
  3. I am aware that Mr and Mrs X first raised the issue with the Council in 2017. At that time the matter was considered by the Council’s Environmental Protection Department. There was a site visit and the notes of this visit suggest problems with the drainage field were acknowledged at that time. As explained above, the Council was not involved with the building regulations approval process. I am satisfied that following the site meeting in 2017, there was no action for the Council to take in respect of the building regulations, this was solely the responsibility of the AI. This is why I have not exercised discretion to investigate matters going back to 2017.
  4. I have considered the actions of the Council from January 2020 onwards as this is when Mr and Mrs X contacted the Council again regarding the problems and asking it to take enforcement action. Mr and Mrs X provided details of ground and soil water analysis from their garden. I am satisfied the Council considered the information presented and then used its professional judgement to decide there was no basis to take action on the basis of a nuisance prejudicial to health.
  5. The Council has provided a detailed explanation of why it does not consider Mr and Mrs X’s agent provided robust evidence of a health risk. It says it does not consider the agent who carried out the tests has the necessary expertise to carry out this type of sampling and investigation. The Council did ask the agent to provide more details of the sampling he had carried out but the agent did not provide a response.
  6. I find no fault in how the Council responded initially to Mr and Mrs X’s concerns in January 2020. The Council considered the situation and used its professional judgement when deciding not to take further action.
  7. The Council did take further action in May 2020 in response to Mr and Mrs X’s further correspondence. It carried out site visits and witnessed there was a problem with water at Mr and Mrs X’s property. It took the view at that time that the problems were probably caused by the neighbours’ drainage field. The Council agreed to employ a third party to carry out a proper analysis of the water at Mr and Mrs X’s property in order to determine if there was a risk to health.
  8. This action was not pursued when it was accepted the drainage field was not compliant with building regulations. I do not consider this to be fault. The purpose of the testing was to establish if the water was coming from the drainage field and if it was contaminated. Once it was realised the drainage field was not acceptable in its current form the Council focussed its efforts on ensuring a compliant drainage system was installed which was the appropriate action. The Council says that it will carry out sampling and analysis if the problems continue following a compliant drainage system being installed.
  9. Mr and Mrs X complained the Council failed to take appropriate enforcement action. The Council accepted the drainage system was not compliant with building regulations in June 2020. The Council says it did then reconsider its enforcement powers but decided this was not appropriate as the neighbours were co-operating with the Council and trying to resolve the issue. It says the serving of an enforcement notice might actually have delayed resolution if the neighbours had chosen to appeal. I find no fault in respect of the decision not to take formal enforcement action.
  10. However, I am aware that Mr and Mrs X spent time and effort asking the Council to properly consider its enforcement powers. Initially the Council said it could not take enforcement action because the drainage field had been constructed too long ago. It was only because of Mrs X’s persistence that the Council accepted it did have enforcement powers under Section 59 of the Building Act 1984. I consider that Mrs X was put to avoidable time and trouble in pursuing this matter and that it was fault for the Council not to be aware of this enforcement power at the outset.
  11. I note the Council’s comments that the neighbours were co-operating with it to make changes to the drainage system. I also note these events took place during the COVID-19 pandemic which would have caused some lengthening of timescales. The Council allowed the neighbours time to seek advice on a further adaptation to the drainage field. However, I am not persuaded the Council gave the same consideration to the impact on Mr and Mrs X of the extended timescale.
  12. The Council did request monthly emptying of the septic tank but it is not clear to me why it did not consider weekly emptying at this point and waited until January 2021 to request weekly emptying. It seems to me that weekly emptying should have been considered sooner because of the potential effect on Mr and Mrs X. I consider the failure to request weekly emptying sooner was fault that caused distress to Mr and Mrs X.
  13. Mr and Mrs X say the Council allowed the neighbour time to consider making changes to a drainage field that was not capable of being installed due to the constraints of the site. I note the Council allowed an extended timescale and that this resulted in failed percolation tests. I consider the Council should have used its professional judgement to consider whether a drainage field could be installed due to the slope and size constraints of the site. I have not seen any evidence to show it did this but rather allowed the neighbours an extended timescale to carry out tests that were unsuccessful.
  14. Mr and Mrs X are in a situation where it is most likely water from the neighbouring property’s drainage system has been flowing into their garden. There is uncertainty whether this water is contaminated to an extent that can be considered prejudicial to health. This uncertainty has caused considerable distress to Mr and Mrs X. I do not accept the Council’s assertion that no injustice exists in this case. The uncertainty, distress and avoidable time and trouble in pursuing this case experienced by Mr and Mrs X is a significant enough injustice to warrant a remedy.

Agreed action

  1. To remedy the injustice caused to Mr and Mrs X as a result of the fault identified in this case the Council should, within one month of my final decision, take the following action:

Provide a written apology to Mr and Mrs X;

Pay Mr and Mrs X £300 to recognise the distress caused; and

Pay Mr and Mrs X £150 to recognise their avoidable time and trouble in pursuing the complaint.

  1. It should take the following action as soon as the information is available but within three months of my final decision:

Notify Mr and Mrs X of the outcome of the decision by the Environment Agency in respect of the application for a borehole; and

Provide details to Mr and Mrs X of the timetable for the completion of works to provide a suitable drainage system.

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Draft decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Parts of the complaint that I did not investigate

  1. Mr and Mrs X originally complained to the Council in 2017. The complaint was investigated by Environmental Health Officers who decided there was no basis to take formal action. The building regulations approval was granted by a private approved inspector and so the Council was not involved with the detail of the drainage scheme at that time. Due to poor health, Mr and Mrs X did not pursue the matter in 2017. I am not persuaded there is any basis to now investigate these earlier matters.

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Investigator's decision on behalf of the Ombudsman

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