Summary: Mr X complains there were failings and delays in the way the Council responded to his request for assistance in resolving the possible contamination of his private drinking water supply. We have found no evidence of fault in the way the Council considered these matters and so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mr X complains there were failings and delays in the way the Council responded to his request for assistance in resolving the possible contamination of his private drinking water supply causing distress.
2. Mr X complains the Council gave inconsistent information and failed to engage with him. Mr X says the Council twice sent a notice it was serving on his neighbour to his address in error and allowed his neighbour extra time to respond causing delays in dealing with the matter.
3. Mr X says the Council‘s lack of response to his complaints and concerns added to his distress and frustration in resolving the matter. Mr X says he does not have a drinking water supply so has to wash in potentially polluted water. He is also unable to progress buildings works on his site so has suffered financially and a loss of amenity because of the pollution.

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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. 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, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

5. 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

6. I have read the papers submitted by Mr X and spoken to him about his complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
7. Mr X and the Council 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

Part 2A of the Environmental Protection Act 1990

8. Part 2A of the Environmental Protection Act 1990, in force in 2000 established a new statutory regime for councils for the identification, investigation, and remediation of contaminated land. The objectives of the regime are:
• To identify and remove unacceptable risks to human health and the environment.
• To seek to ensure that contaminated land is made suitable for its current use.
• To ensure that burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.
9. The starting point of Part 2A should always be that land is not contaminated unless there is reason to consider otherwise. For a relevant risk to exist at least one ‘contaminant linkage’ must be present. Contaminant linkage is the term used to identify the relationship between a contaminant, a pathway, and a receptor.
10. A ‘contaminant’ is a substance which is in, on or under land and which has the potential to causes significant harm to a relevant receptor, or to cause significant pollution of controlled waters. A ‘receptor’ is something that could be adversely affected by a contaminant, for example a person, an organism, ecosystem, property, or controlled waters. A ‘pathway’ is a route by which a receptor is or might be affected by a contaminant.

The Council’s duty to investigate

11. The Government produced the Contaminated Land Statutory Guidance (Guidance) in 2012. The Council confirms that under the Guidance when it receives information of a potential harm for human health, controlled waters, or the environment then it will act and investigate to establish if the land meets the legal definition of ‘contaminated land’. If it establishes there is a ‘contaminant linkage’ it needs to determine who is liable for remediation to make the site suitable for use without any impact on human health, controlled waters, and the wider environment.
12. The Council uses the ‘suitable for use’ approach to define contaminated land which the principles of risk assessment underpin. The Council recognises it may need to use the specialist knowledge and technical expertise of consultants to risk assess a site and carry out the necessary investigations on occasions. The Council ensures any consultants are appropriately qualified and competent to carry out the work. But while the experts may advise the Council on Part 2A matters, it is the Council’s responsibility to make any regulatory decisions.
13. The Guidance says the Council should take a precautionary approach to risks raised by contamination and consider the costs of taking action.
14. Under the Guidance the Council needs to initially identify a person who may be responsible for paying for the remediation process. The strategic policy for environmental damage is the polluter should pay. The Council will therefore first look for the person who caused or knowingly permitted each linkage (i.e., a Class A persons). But if the pollution incident is historic the original polluter may no longer exist. So, if no Class A persons can be found the Council usually seeks to identify the owners or occupiers of the land (i.e., Class B persons). Although this step does not apply to linkages relating solely to pollution of controlled waters.

Events leading to the complaint

15. The site gained planning permission in 2014 to convert former agricultural buildings into three residential units. Mr X bought the site later and intended to convert the buildings to residential use. Mr X lives in a caravan on the site.
16. Mr X contacted the Council in June 2020 saying he had dug a trial pit at one of the buildings, a barn. Mr X reported a strong hydrocarbon smell from water in the exposed pit. An Environmental health officer visited the site a few days later. The officer witnessed the smell and possibly oil contamination in the excavated pit. The officer learnt during the investigation the barn had been previously used as a place to store and strip down vehicles which could potentially cause the contamination found by Mr X. So, the officer advised Mr X to appoint a geo-environmental consultant to investigate the matter further.
17. Mr X raised concerns about possible cross contamination to his current water supply which served the caravan. The officer advised Mr X to contact the local water company and ask it to sample the water supply. This was because the water company has responsibility for water quality issues. The Council comments Mr X has been reluctant to contact the water company for some reason and has not reported the issue. The officer also advised Mr X to contact his insurance company to see if he had any cover for oil leaks, damage to his property and impact on the wider environment from an oil leaks on his land. The Council understands Mr X has not acted on this advice either.
18. In commenting on the draft decision Mr X says he contacted the water company and told it would not test because it was a private water supply. Mr X also says he held some insurance for a ‘self build’ project but does not consider the Council’s comments about his insurance arrangements pertinent to the matter.
19. Mr X arranged for a geo-environmental consultant to carry out tests. Mr X sent the Council a copy of the consultant’s report at the end of July 2020. The consultant reported visual/olfactory evidence of a potential fuel/oil substance in the soil and water at shallow depth on Mr X’s land. This was near a boundary wall so it may be limited to that area. The report recommended adopting remedial measures to safeguard the proposed residential unit during the construction phase. It also recommended identifying the unknown potential contamination source and implied it may be from a neighbouring site.
20. The Council considered the new evidence meant the case was more complex than it originally thought. The report recommended the need for further investigation to establish the source of the contamination on Mr X’s land. Mr X raised concerns again whether the contamination found in the first trial pit could be impacting on his water supply pipes. Officers again advised Mr X to contact the water company if he had any concerns about his mains drinking water supply. Officers said it was the water company’s responsibility to sample and test water quality.
21. The Council understands Mr X has not contacted the water company and continues to drink bottled water. The Council comments it is unclear why Mr X’s consultants did not sample the water if they considered it a risk to his water supply. The Council considered the engineer’s report. It noted the concerns were about the future water supply to the barn and for remedial measures to be installed to prevent any cross contamination. The concerns were not about Mr X’s current mains water supply pipes.
22. Mr X contacted the Council about the report and what he felt were the main findings. Mr X considered it was no longer safe to drink from his water supply. Mr X believed the contamination was coming from his neighbour’s land so asked the Council to intervene on the matter.
23. In August 2020, the Council served a notice on Mr X’s neighbour asking for information. The Council requested the neighbour investigate whether there were any leaks from their domestic oil tank that could be impacting on Mr X’s land. The Council accepts it wrongly issued the letter on two occasions to Mr X’s property as the neighbour’s address was not properly registered on the Council’s property database. So, the system produced letters addressed to Mr X instead. The Council apologised to Mr X.
24. The Council correctly sent the letter to the neighbour on 21 August 2020 and informed Mr X. Mr X raised concerns about the time taken and was eager to restore his water supply. An officer gave Mr X advice about action he could take such as install a suitable protected water pipe and look at oil break down products to degrade the oil in the contaminated area.
25. Mr X advised the Council he had received a response from the Environment Agency who found no oil on his neighbour’s land. Mr X asked the Council what action it intended to take. An officer responded noting Mr X had confirmed he did not have sufficient insurance on his building project to cover the issue. So, the Council was doing all it could to help in a case where an insurance company should have done the investigation, clean up calculations and possibly speculation into the type of oil to prove its source. The officer told Mr X the investigation would take time and the Council was doing all it could. Mr X confirmed with the officer they had enough water for drinking and cooking.
26. Mr X expressed concerns over the time taken and referred to regulations under which he considered the Council could act. The officer responded the matter could take years to resolve if the Council acted according to those regulations. The officer confirmed the Council was doing all it could to act quickly given the current circumstances and other commitments due to the COVID-19 pandemic.
27. Mr X’s neighbour responded with information in September 2020. The Council decided from the information and Mr X’s report from July 2020, it need to appoint a geo-environmental engineer to help with a wider investigation. The Council told Mr X it would fund and carry out an investigation to establish if the contamination was from nearby buildings or land to the south of his property. The Council was concerned the vehicles and machinery previously at the barn could be the source. The Council reminded Mr X the investigation was not a quick process and may take some time and consideration.
28. The Council’s financial procedures require it to tender for the work and obtain quotes from three engineers to carry out the work. The Council says this took time as well as consultants being available and issues relating to the COVID-19 pandemic. The Council kept Mr X updated.
29. The Council received the final draft of its engineer’s report in January 2021. The Phase 1 report recommended a more detailed investigation on both Mr X’s land and his neighbour’s land. The Council says it needed a Phase 2 investigation to establish whether there was a contaminates linkage on site and what remediation work was needed to ensure the land was suitable for use. Due to the cost of the phase 2 investigation the Council needed to go through a formal tender process again.
30. In March 2021, the Council secured funding and appointed a consultant to carry out the work. The Council has received the final draft of the engineer’s report and will contact Mr X and his neighbour once it considers the findings. The Council says officers have also contacted the water company, as Mr X has not done so, to carry out sample testing of Mr X’s water supply. This is because the water company has a duty to do this. The water company has carried out the sampling and the Council has received some results as part of its Part 2A investigation.

The Council’s comments on the complaint

31. The Council accepts it may not have met Mr X’s expectations and timescales to deal with the matter. But comments that complex cases such as this take months and sometimes years to resolve. The Council confirms it needs to ensure it has all the relevant information and conducts investigations properly when relying on external consultants. It says that some of the time periods Mr X complains about were due to consultant availability to do the work and the due diligence needed to procure the external services which can take months. The Council says it has also had the challenge of dealing with COVID-19 related issues which placed a demand on its services.
32. The Council confirms it will deal with the Phase 2 investigation and water company sampling results to ensure it brings the matter to a satisfactory conclusion as soon as possible while carrying out its legal obligations.

My assessment

33. The Council has responded to Mr X’s concerns about possible contamination and dealt with the matter under Part 2A of the Environmental Protection Act 1990. The Council accepts it has taken time to progress matters due to consultant availability and impact of the COVID-19 pandemic. But I find no evidence of undue delay by the Council as it is required to check the information it receives and carry out due diligence to appoint consultants to do the work. This is in line with the Guidance which says the Council should take a precautionary approach to risks raised by contamination and consider the costs of taking action.
34. The evidence provided shows the Council is moving forward as quickly as it can and has now approved a second investigation into the possible source of the contamination at its own cost. The Council will tell Mr X of the outcome when it can to bring matters to a satisfactory conclusion within its legal obligations. This may involve the Council in identifying those responsible for remediation works.
35. The Council accepts it sent a notice to Mr X’s neighbour in error. While the error was unfortunate, I do not consider it is significant enough to warrant a finding of fault by the Council. This is because it has not contributed significantly to the time taken and the Council has already apologised for the error which I consider is suitable action for it to take.
36. The evidence shows the Council has responded to Mr X’s concerns and consistently given him advice about the actions it can take. This includes contacting his insurers about the matter, asking the water company to sample his water supply and for Mr X to install a suitable secure water pipe. The Council has also contacted the water company as well as the investigation works it is carrying out. I do not consider I can achieve a different outcome for Mr X or that any further investigation will achieve anything more for Mr X. The Council is taking action to progress matters which is the outcome Mr X is seeking.

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Final decision

37. I am completing my investigation. I have found no evidence of fault in the way the Council responded to Mr X’s request for assistance in resolving the possible contamination of his private drinking water supply.

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Investigator's decision on behalf of the Ombudsman