Summary: Mr F complains about the actions of an internal drainage board. The Ombudsman has not found fault.

The complaint

1. Mr F complains that the drainage board:
1. wrongly levied a charge on him.
2. misused public funds when it bought retirement gifts and paid for catering for Board members.
3. improperly granted consents to various planning applications.
4. took no action when a developer carried out work to build an access road near his home without consent.
5. failed to properly investigate his complaint about the conduct of a Board member.
2. Mr F says he has suffered financial loss as a result

Back to top

What I have investigated

3. I have investigated complaints d) and e). I explain at the end of this statement why I have not investigated parts a) to c).

Back to top

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’. 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. Internal Drainage Boards came within the Ombudsman’s jurisdiction following the Commissions for Local Administration (Extension of Jurisdiction) Order 2004, which came into force on 1 April 2004.
6. We cannot question whether a Board’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with a Board’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)

Back to top

How I considered this complaint

8. I considered the information Mr F sent and the Board’s response to my enquiries.
9. Mr F and the Board had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

10. Internal Drainage Boards are independent statutory bodies responsible for land drainage in areas of special drainage need. They undertake works to reduce flood risk to people and property, and manage water levels for agricultural and environmental needs within their district. Boards consist of elected members made up of local agricultural drainage rate payers and members appointed by levy-paying local authorities. They have a clerk and usually meet twice a year.
11. Upwell Internal Drainage Board (the Board) is administered by the Middle Level Commissioners (MLC), a separate body which also provides engineering and planning liaison consultancy work for the Board.

Board members conduct

12. The Board has a Members’ Code of Conduct which says members must not use their position improperly to secure an advantage. A member has a personal interest in the Board’s business if the business relates to, or is likely to affect, any employment or business carried on by the member, or any land in which they have a beneficial interest.
13. The member must disclose a personal interest at the meeting at which the business is considered. The member must remove themselves from the discussion if they have a financial interest.
14. Complaints about the conduct of members are considered under the Board’s complaints procedure. This says where possible complaints will be responded to within 15 working days. The Board’s meeting information, policies and complaint procedure are hosted on the MLC’s website. The complaint procedure says complaints should be submitted to the Clerk at the MLC office.

Consent

15. Under the Land Drainage Act 1991 Boards have permissive powers to supervise matters relating to the drainage of land within their districts. This includes the power to levy drainage rates on agricultural land and raise special levies on local authorities to reflect the service they provide to the wider community.
16. The Act also gives Boards the powers to have byelaws. One of the Board’s byelaws (Byelaw 3) requires a person to obtain the consent of the Board to discharge an increased rate or volume of flow into a watercourse. The Board may levy a charge for this, based on the cost of dealing with the extra rate or volume. The monies are used to help pay for the extra maintenance or capital works required as a result of the development.
17. Byelaw 11 says an undeveloped strip of 9 metres must be left clear on Board maintained drains of any obstructions such as buildings, fences and trees. This area of land is required to enable the Board to gain access to the watercourse for maintenance and other purposes. Any proposals to landscape, develop or undertake construction works within this area must have the Board’s prior consent. The byelaws say consent shall not be unreasonably withheld.
18. Under Sections 34 and 34(4) of the Land Drainage Act 1976, the Board may take legal action against any person who contravenes or fails to comply with any of the byelaws. If convicted the person may be fined. The Board may also take action to remedy the effect of the contravention and recover the expenses.

What happened

Background

19. In 2014 a planning application was made to the local district council for the erection of houses near Mr F's home. The applicant (Mr X) is a member of the Board. He applied to the Board for byelaw consent to construct an access road within the Board’s 9 metre access strip. The planning application was withdrawn later that year but in May 2015 the Board approved the application for consent in principle because the access road would provide better access to the drain for maintenance works.
20. Mr F objected to the planning application and to consent being granted for an access road, which was near his property. Mr F was concerned that the proposal was to remove all hedges and trees, which contradicted the Board’s Biodiversity Plan and would reduce the stability of the bank. He said the proposal breached the Board's byelaws and was concerned the application had been made by a Board member who must have been aware of this. Mr F considered this was a breach of the Board Members’ Code of Conduct.
21. Mr X declared an interest in the application at the Board’s January 2017 meeting. In April 2017 the Board received a new application for consent from Mr X for the site. The minutes of the Board’s May 2017 meeting say it was awaiting the associated fee before the application could be progressed further. At that meeting the Board agreed to inspect its district on 19 June 2017. Mr X did not attend the May 2017 or June 2017 meetings.

Mr F’s complaint

22. In November 2017 Mr F wrote to the Board. He was concerned Mr X’s consent application was not in accordance with the byelaws, that the June 2017 meeting had not been publicised, and that Mr X had not declared an interest. The Board replied in December 2017 that it was still considering the application and Mr X had declared an interest in January 2017. The June 2017 meeting was an "inspection" meeting that had been notified at the previous meeting.
23. Mr F replied that he remained concerned and that the site of the proposed access road (Site X) was being cleared of vegetation. The Board considered the application at its January 2018 meeting. Mr X declared an interest and left the room. The Board agreed to discuss the item in private, because it included a discussion about Mr F’s complaint, which was confidential. The Board noted it approved the application in principle, though more information was required before consent could be granted. It agreed to write to Mr F
24. Following the meeting Mr F wrote to the Board several times to request updates and raise his concerns about the application. The Board replied on 12 March 2018. It sent him an extract of the minutes and advised Mr F he could contact the Ombudsman about his complaint.
25. The Board’s clerk met Mr F on 16 March 2018 at Site X to discuss his concerns with the application. There are no notes of this meeting. Mr F showed the clerk several other sites where he was concerned consent had not been properly granted by the Board. He says he also raised concerns about Mr X's conduct.
26. In May 2018 the Board wrote to Mr X to explain it would recommend refusal of his application for consent unless more information was provided. It considered the application at its meeting on 11 June 2018. Mr X declared an interest and left the room for the discussion. The Board refused consent. It advised Mr F of this on 22 June 2018.
27. Between August 2018 and July 2019, Mr F continued to correspond with the Board about his complaints that:
• He had been wrongly charged a developer contribution.
• The June 2018 meeting had not been publicised.
• The Board had misused public funds.
• Consent had not been properly granted for various sites, including Site X.
• Mr X had breached the code of conduct.
28. Mr F says the Board did not investigate these complaints. In October 2018 Mr F told the Board that work had started on Site X so he believed consent must have been granted.
29. The Board wrote to Mr X on 1 November 2018 that there had been a breach of the byelaw as no consent had been granted for the works which had started. It offered to provide site-specific advice through its post-application consultation process, to prevent enforcement action being needed. In response, Mr Z wrote to the Board to explain he was the new owner of Site X. Mr Z submitted a new consent application in April 2019. This has since been recommended for approval but discussions about the application were continuing in February 2020.
30. Mr F approached the Ombudsman in April 2019 but we saw no evidence of a final response to his complaint by the Board. Mr F resubmitted his complaint to the Ombudsman in October 2019.

My findings

d) took no action when a developer carried out work to build an access road without consent.

31. Mr F complained that works to construct an access road on the 9 metre strip on Site X near his home had started, either without consent, or that consent had not been properly granted as the works were a breach of Byelaw 11.
32. The minutes of the Board’s meetings show that consent was not granted to Mr X’s application.
33. Mr F told the Board in October 2018 that works had started. I have seen evidence that following this the Board advised the applicant the works were a breach of the byelaws and that it could take legal action. In response the new applicant Mr Z, submitted a new application for consent in April 2019. This is still being considered.
34. There is no evidence the Board failed to act when it was aware of the breach. It wrote to the applicant and it was entitled to discuss the proposals with Mr Z before deciding whether to take legal action. As a result of those discussions it is now considering a new application for consent. I do not find fault.

e) failed to properly investigate his complaint about the conduct of a Board member.

35. Mr F complained that Mr X had breached the Code of Conduct because he had submitted an application to the Board that did not comply with its byelaws. Mr F says this complaint was not properly investigated by the Board.
36. Mr F raised his concerns in November 2017 and March 2018. The Board wrote to Mr F in December 2017 and May 2018 advising that Mr X had declared an interest in the matter and had left the room when the matter was discussed. This is in line with the Code of Conduct.
37. Mr X was entitled to apply to the Board for consent to build in the access strip. His doing so was not a breach of the Code of Conduct. Once the clerk had established that Mr X had declared an interest and not taken part in the discussion about the application, there was no breach of the Code of Conduct to investigate.
38. In response to my draft decision, Mr F said Mr X had not applied for consent and this was a breach of the Code of Conduct. I have seen Mr X’s 2014 application and evidence he made further applications in April 2017 and October 2019. The Board required more information before it could progress the applications. This is not fault or a breach of the Code of Conduct.
39. I have considered whether the Board is required to have a separate process to investigate complaints about members’ conduct. The Localism Act 2011 requires local authorities to have such procedures, but this Act does not apply to Boards, which are defined as Risk Management Authority within the Flood and Water Management Act 2010. Boards proceedings are governed by the Land Drainage Act 1991, but this contains no requirement to have a separate members’ code of conduct complaints process. The Board’s Members’ Code of Conduct says it complies with the Code of Conduct for Board Members of Public Bodies issued by the Cabinet Office. This says if members have a concern about a possible breach of the code, they have a responsibility to “raise that internally with the chair of the body”. There is no requirement for separate procedures. The Board may therefore consider complaints about members’ conduct under its complaints procedure.
40. The Board replied to Mr F’s complaint in December 2017 and May 2018 and informed him that Mr X had acted in line with the Code of Conduct. There was no fault.

Back to top

Final decision

41. I have not found fault. I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

42. In 2011, the Board levied Additional Developer Contributions on property owners, including Mr F, following the developer’s insolvency. The Board went to the small claims court to recover these payments. Mr F defended his claim and the matter was stayed, in lieu of dismissal. Mr F entered into an agreement with the Board but subsequently acted against the Board for failure to comply with the agreement. Mr F complains the additional developer contribution was wrongly levied on him. I have not investigated this complaint because the County Court has considered the matter and the law says we cannot investigate a complaint about what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
43. I have not investigated complaints b) and c) because 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
• there is another body better placed to consider this complaint

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

44. In relation to complaints b) and c), I have seen no evidence of fault or that Mr F is significantly, personally affected by the Board’s use of its funds or the consents granted to other sites.
45. The Ombudsman’s role is to consider complaints of maladministration and service failure which have caused significant, personal injustice to the complainant. We are not an inspectorate, auditor or a regulatory body and in the absence of evidence of maladministration causing injustice we cannot investigate.

Back to top

Investigator's decision on behalf of the Ombudsman