Summary: Mr B complained about the way the Environment Agency uses a flood storage reservoir on land in which he has an interest. He said the failures adversely affected his business and use of the site. And the failure to tell him of its long term plans meant he could not make plans for his business. There was no fault by the Agency.

The complaint

1. I call the complainant Mr B. He complained the Environment Agency (the Agency) did not follow up as promised from a meeting in January 2020. The main issues of concern to Mr B were:
• the Agency had not explained to him what its plans are for decommissioning a flood storage reservoir which is on land he co-owns;
• how long and the frequency the Agency uses the reservoir and the depth of the held water;
• specific works of maintenance and other issues on the site. He said that they have not been carried out to an adequate standard and have taken too long.
2. He said the results of the different pattern of use has caused his business financial loss. The failure of the Agency to tell him of its long terms plans for the flood storage reservoir meant he had not been able to make plans for the future of his business. And the standard of works and the length of time to complete them have impacted on his commercial use of the site.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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)
5. If we are satisfied with the actions or proposed actions of the body in jurisdiction, 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

6. I considered the complaint and documents provided by Mr B and spoke to him I asked the Agency to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Relevant legal context

7. The Environment Agency has operational responsibility for managing risks from flooding from main rivers.

What happened

Background

8. Mr B operates a fishery and other commercial undertakings on land which he co-owns. He operates the whole of the site. On the land there is a flood storage reservoir. The Agency uses this reservoir to control the risk of flooding when there is a storm or high water by allowing water to be held on the land.
9. This arrangement came about because the previous owners of the site, and with whom Mr B now co-owns the site, entered into a contract with the authority which was the predecessor to the Agency. The contract refers to various matters and the rights and responsibilities of the parties to the contract.
10. I will refer to each of the main parts of Mr B’s complaint.

Follow up from the meeting in January 2020

11. Mr B understood there would be a follow up from the meeting in January 2020. The Agency has commented that no follow up was promised. There was correspondence between him and the agency over the first six months of 2020 about various issues on the site with Mr B raising concerns. The Agency responded although not to the satisfaction of Mr B.
12. There is a difference of view about whether there was any commitment for a follow up after the meeting. There is no evidence to support either view so I cannot say there was a firm commitment to do so. And, if it was Mr B’s expectation that there was going to be further communication then it was open to him to follow that up. The correspondence there was between Mr B and the Agency over the rest of the year was routine and the Agency replied to the specific matters he raised.

The frequency and nature of the use of the reservoir by the Agency

13. There is a contract in place between the owners of the site when the reservoir was built and the predecessor authority to the Agency. As I understand it the obligations and requirements of the contract will have passed on to any successor of the title of the land.
14. The contract does not say how frequently the reservoir can be used or to what levels, only saying that it can be used from ‘time to time’. The Agency accepts it has been used more frequently over recent years but that is because of weather events which have necessitated it being so used.
15. It is not our role to interpret contract documents; that is for the courts. If Mr B considers the Agency is not complying with the terms of the agreement then it is something he could take to court. That would be the appropriate way forward and it is not something I can come to a view on.

The works done

16. Mr B has complained about various aspects of work done on the site. The site is inspected by a supervising engineer independent of the Agency. There is an annual inspection and, in some years, an interim inspection. I have seen the reports of the last four visits including the most recent one following a visit in September 2021.
17. The most recent report does not show that there are works that need to be done at the site.
18. One of the particular areas of concern is flooding of a car park. Mr B considers this is connected to the flooding of the reservoir but the Agency does not and considers it has another cause. I cannot decide this point as it involved a technical assessment of the possible causes of the flooding. The Agency has considered the point and I cannot therefore say there was any fault in the approach taken.
19. Again, if Mr B considers that failures by the Agency have resulted in damage to his property then that is something he could pursue in the courts.

Decommissioning the site.

20. The Agency is considering decommissioning the reservoir. Mr B considers there has been delay and it has failed to share with him the information it has.
21. The Agency says there have been delays in getting information back from the consultants who are undertaking the technical assessment of the hydraulic modelling. And that the information is still raw and will require further analysis and consideration. It had always been clear that this was a long process.
22. I understand Mr B’s frustration at not having a clearer picture of the long-term use of the site but I do not consider there has been fault here. This will be a complex consideration and I accept the Agency is limited in the information it can give to Mr B as part of that process.
23. However, the Agency should ensure it keeps Mr B informed as much as it can. If Mr B considers there is undue delay in the future, or a failure to keep him informed, he can make a further complaint to us.

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Final decision

24. There was no fault.

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Investigator's decision on behalf of the Ombudsman