Summary: Mr X complains about the Council allowing a situation to arise where untreated sewage leaks on to farmland near his property. His complaint is about its building control department and the public health impact. The Ombudsman will not investigate Mr X’s concerns about building control. And, while we did investigate the response of the Council’s Environmental Protection department, there is no evidence of fault in its actions.

The complaint

1. Mr X complains about the Council allowing untreated sewage to leak on to farmland near his property. He says this is mainly because of failings in the Council’s building control department in supervising drainage works when a neighbouring farmhouse and barns were converted into separate houses some years ago. Mr X’s main concern is the public health impact of the sewage.

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What I have investigated

2. I have investigated the part of Mr X’s complaint about how the Council considered the public health impact of the sewage leak, to the extent it involves its Environmental Protection department.
3. I will explain why I have not investigated the rest of Mr X’s complaint at the end of this statement.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these.
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained.

(Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

7. We discussed the issues with Mr X and read his detailed correspondence with the Council and his complaint to the Ombudsman. We wrote to the Council to make enquiries and reviewed the information it sent in response.
8. We have shared the draft decision with Mr X and the Council and invited their comments.

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What I found

The law

9. Under the Environmental Protection Act 1990 it is an offence to cause a statutory nuisance. In this context this can be accumulations, odours, fumes and dust from premises.
10. If someone complains about nuisance from pollution, the Council should investigate and decide whether it is a statutory nuisance. It can also choose to take informal action if something causes nuisance but is not a statutory nuisance, such as by writing to the owner.

Mr X’s complaint

11. Several years ago, a farmhouse and barn near to Mr X’s house were converted into several houses. In August 2018, the drainage system serving one house failed and sewage overflowed into another property. According to Mr X, the drainage system had a flawed design, meaning surface water drained inappropriately into a septic tank belonging to a neighbour and causing it to fail. Mr X has said this occurs each occasion surface water is discharged from various gullies. The septic tank itself is under land next to but not on Mr X’s property.
12. Mr X started writing to the Council enquiring about building control concerns having spoken to his neighbour who owns the house responsible for the septic tank. He says he did so to help out.
13. The Council says Mr X called its Environmental Protection department in October 2018. It says he wanted to know what advice it had given to his neighbour. The Council says it refused to tell him because of data protection laws. It did however confirm it had given advice and it believed his neighbour intended to act on it.
14. The next relevant contact between Mr X and the Council was in April 2019 when he sent it a letter of complaint. The Council says most of the letter described building control matters. However, there was also a reference to concern for the health of him and his family because of the sewage discharging from the septic tank on to neighbouring farmland.
15. In response, the Council says it sent out diary sheets in line with its standard procedure for the investigation of nuisance complaints. It says it also, “…explained the process that it would go through to remediate the problem in the event that a nuisance was substantiated.”
16. A senior environmental health officer handled Mr X’s complaint and the Council says she visited the area in June. It says she could not see the problem that Mr X was describing from the highway, nor how it could be affecting his property.
17. Mr X later wrote to Council confirming he did not consider the diary sheets relevant to the circumstances of his complaint. It says as there was no evidence of a nuisance it could not take any action.

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Analysis

18. The law is clear if there is a statutory nuisance, the Council must act to cause it to stop. However, it cannot do so without evidence.
19. The Council sent diary sheets to Mr X so he could record when the discharge of sewage was causing a nuisance to him or his family. He chose not to complete them as he considered they were not relevant. It is usual for councils to ask complainants to complete diary sheets to provide evidence of the extent of the problem. So, it was appropriate for the Council to ask Mr X to complete them in order to gather evidence of the extent of the problem.
20. A suitably trained officer went to the area to determine if there was evidence of liquid or odour reaching Mr X’s property. Mr X says the officer would not have been able to see the problem as it would not be visible. The Council can only take action if it has evidence of a statutory nuisance. As set out above, the officer visited the site and the Council asked Mr X to complete diary sheets to record when the problem occurred. So, I am satisfied the Council has taken the appropriate steps to investigate the matter and I do not find it to be at fault.
21. Mr X disputes the officer is suitably trained. Environmental Health Officers are trained to investigate and reach a judgment on whether the matter complained about amounts to a statutory nuisance. I have no reasons to consider the officer, who is a senior officer, is not suitably trained to make that judgement.
22. While it cannot disclose the details to Mr X, the Council has also explained to us the advice it gave to Mr X’s neighbour. I am satisfied it was suitable in the circumstances.
23. In response to the draft decision Mr X has said the Council should have ensured the developer complied with a condition of the planning permission. This condition required the developer to submit details of the foul drainage for approval by the Council prior to the commencement of the development. Councils do not police developments to ensure they comply with the conditions of the planning permission. In any event the development was built several years ag. So I could not reliably establish what happened and reach a sound decision on whether the Council is at fault due to the passage of time.

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Final decision

24. There is no evidence of fault in how the Council carried out its environmental protection investigation into Mr X’s complaints about the discharge from a septic tank. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

25. I have not investigated the part of Mr X’s complaint about the Council’s building control department. While I recognise this is the main part of Mr X’s complaint, there are two major reasons for this.
26. First, the Ombudsman has a presumption against investigating complaints about building control matters. This is because the main responsibility for building work lies with those who commission it and those who do the work.
27. While council building control officers visit at various stages, there is no need for them to do so. They will not be present for most of the work and do not act as a ‘clerk of works’. Any completion certificate issued is not an absolute guarantee that all the works meet the standard of the building regulations.
28. Second, I note Mr X does not own nor live in any of the properties directly affected by the Council’s building control decisions taken several years ago. The septic tank does not discharge onto his land either. I note Mr X considers he is caused injustice due to the possible public health risk caused by the discharge of the septic tank. This matter has been correctly considered by the Council’s environmental protection department. I therefore consider Mr X cannot suffer any significant injustice as a result of any fault with the building control process.

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Investigator's decision on behalf of the Ombudsman