Summary: Mr X complains the Environment Agency (EA) failed to use their powers to clear a blockage in the River Lambourn during a period of flooding in the area. We found there was no fault by the EA.

The complaint

1. Mr X complains the Environment Agency (EA) failed in their duty of care to the residents of Newbury by not using their authority to fully clear a blockage on the River Lambourn. The blockage is in the river on a hotel site.
2. Mr X’s complaint noted that water levels in the river had been high for three months at the time of his report. This led to his road flooding. This affected access to his property. He noted it also caused internal flooding to some other properties, and it affected residents’ mental health due to repeated flooding events. He complained that the part blockage of the river contributes to the flooding in the area and action should be taken to clear it.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)
5. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault, we cannot question a decision it made or decide if it should have reached a different view.

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How I considered this complaint

6. I considered evidence provided by Mr X and the EA as well as relevant law, policy and guidance.
7. Mr X and the EA had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The role of the Environment Agency (EA)

8. The EA is the principal flood risk management authority in England. It is responsible for, amongst other things, forecasting, mapping flood risk and managing the risk of flooding.

Power to carry out flood risk works

9. The Water Resources Act 1991 gives the EA the general power to carry out works to manage flood risk provided two conditions are satisfied:
• That the work is to manage flood risk from the sea or from rivers; and;
• That the EA considers the work is desirable having regard to national flood and coastal erosion strategies (i.e. the work is considered necessary).
10. The EA powers relating to flooding and land drainage are permissive; this means the EA has a power rather than a duty to take action. The EA has to prioritise work based on need and it is under a duty to consider the cost:benefit of carrying out works when using public funds.

Power to carry out works and recover costs

11. The Water Resources Act 1991 allows the EA to carry out drainage works on behalf of another person (with their agreement) at the person’s expense. It also allows the EA to take action where blockage of a river is in breach of local byelaws and, in these circumstances, it can reclaim the costs.
12. The Land Drainage Act 1991 allows the EA to serve notice on a riparian owner requesting they clear a watercourse. If the owner fails to comply, the EA can carry out the works in default and reclaim its costs.

Riparian ownership

13. The term Riparian ownership refers to owning land that borders a watercourse like a river, stream, or ditch. It means the owner has a legal interest in and responsibilities related to that watercourse.

What Happened

14. In January 2024 Mr X called an EA incident line about the blockage of a sluice gate in a local river. The blockage was caused by debris from fallen trees. Mr X chased his report and an officer spoke with him. I understand the officer explained that the responsibility for clearing the blockage rested with the riparian owner of the site.
15. Mr X sent an email reiterating his concerns and complained that no action had been taken. As a result, the officer met Mr X at the site. Following the visit the EA provided evidence that it had made contact with the riparian owner about the debris and explained local concerns. Mr X made further reports about the blockage and flooding in general to the EA on multiple occasions between January and February 2024.
16. The riparian owner carried out clearance work in mid to late February 2024.
17. The EA informed Mr X on 1 March that the debris had been cleared. The EA noted that some silt and debris remained in one part of the structure at the site but it did not consider this would have a significant impact. It noted any backed-up water from this part of the structure would be directed down another route. The EA noted that groundwater levels were very high in the area following a wet winter. This was resulting in high river levels which would be sensitive to rainfall and little could be done to control this. They were aware that this would lead to repeat flooding of roads and gardens.
18. Mr X made a complaint to the EA at the end of March 2024. He complained that the EA had not used their powers to fully clear the blockage he had reported. Mr X noted the EA’s position was that clearing the blockage was the responsibility of the riparian landowner. However, he considered the EA should use the full extent of its powers to fully achieve this.
19. In mid-April the EA responded apologising for the delay in doing so. At the time of Mr X’s reports, the area in which he lives was suffering repeated flooding. Mr X had continued to make reports and he explained that his road was flooded, causing access issue for him and other residents. There had been no internal flooding of his home.
20. The EA’s response to Mr X’s complaint explained its resources were already fully deployed across the area dealing with incidents. These included property flooding. It stated the conditions were such that it was unsafe for their teams to clear it and it reiterated its position that the blockage was the riparian owner’s responsibility. It confirmed it had made contact and explained the situation. The EA stated it would not generally monitor what action they decided to take. However, it could try to revisit the site as and when conditions improved and resources became available.
21. Mr X remained dissatisfied and sought further action, including the complete clearance of the remaining silt/blockage and the refurbishment of a structure at the site which was dilapidated. The EA repeated its position in further correspondence with Mr X and explained it had assessed the residual flood risk from the remaining blockage and considered it was small.
22. Mr X remained unhappy with the EA response, and complained to us.

Was there fault by the EA

23. The Ombudsman is not an appeal body. This means we do not take a second look at decisions a local authority has made and decide if they were right or wrong. Rather, we look at the process an organisation followed and we decide if there was any fault in how it made its decisions. If we consider the organisation followed its processes correctly, and had regard to relevant law and guidance, we cannot question the outcome, regardless of whether someone disagrees with it. It is with this in mind that I have considered Mr X’s complaint.
24. The EA has powers to carry out works in relation to flood risk management and it has powers to do work on behalf of others or to require riparian owners to carry out works that are considered necessary to clear watercourses. While these powers exist, these are permissive powers. The EA is not under duty to act, it has the power to do so. I have considered how the EA considered Mr X’s reports and how it decided what action to take.
25. I found there was no fault in the way the EA responded to the reports Mr X made. I say this because:
• There is evidence the EA acknowledged his report, spoke to Mr X about it and visited the site to assess the extent of the problem. In doing so it clearly understood the extent of the issue Mr X was raising.
• The EA made contact with the riparian owner and sought action to clear the fallen tree debris that had built up at the structure concerned. The riparian owner did take action to clear this as a result of the EAs contacts. So, action was taken by the EA following Mr X’s reports.
• I understand Mr X considered the EA should have gone further and used powers to either clear the remaining blockage or require the riparian owner to do so. However, I found the EA properly considered its position and explained its decision not to take action to Mr X. It explained its view that the remaining blockage posed only a small risk of additional flooding and it explained at various points that its resources were being used for priority flooding incidents, particularly the flooding of people’s homes. The EA is not obliged to act and to use powers available to it. It is entitled to decide if action is appropriate in terms of costs and resources.
26. I recognise Mr X considered that any blockage should be removed, because all possible action should be taken to lessen flood risk. However, the EA was not at fault for deciding not to take any further action in this case. It was entitled to decide that it was not appropriate for it to take, or require others to take further action. It reached this view properly so I do not have grounds to question it.

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Decision

27. I find no fault in the EA’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman