The Ombudsman's final decision:
Summary: Neither Council is at fault for their consideration of complaints about a reduced flow of water into a watercourse behind the complainant’s home.
- The complainant, whom I have called ‘Mr B’, is unhappy that a watercourse behind his home no longer carries a regular flow of water. He complains at the actions of both Bassetlaw District Council and Nottinghamshire County Council for not taking action to ensure a regular flow into the watercourse.
- The complaint against the District Council asks the Ombudsman to consider its responsibility as an adjacent landowner. Mr B says the Council should cleanse the watercourse to ensure water flow. It also asks us to consider the Council’s role in approving planning permission for a culvert further upstream.
- The complaint against the County Council asks the Ombudsman to consider its role as lead flood authority. Those who want to culvert watercourses should seek separate permission from such authorities, known as ‘ordinary watercourse consent’. The Council also has power to take enforcement action if it receives no application for such consent. Mr B considers the Council should be using these powers to enforce a water supply into the watercourse.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- 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)
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’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))
- 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))
How I considered these complaints
- Before issuing this decision statement I considered:
- The detail of Mr B’s complaints to the Ombudsman, made by telephone. I also gathered more information from Mr B through further telephone calls and emails.
- Correspondence between Mr B and both Councils about the matters raised in his complaint, pre-dating this investigation.
- Information provided by both Councils in response to enquiries and information in the public domain available on the District Council’s website.
- Relevant law and guidance as referred to in the text below.
- I also issued a draft decision statement to Mr B and both councils. Mr B commented and in response to those comments I asked Bassetlaw District Council to undertake another site visit, which it did. I gave Mr B further chance to comment on the site visit findings. I considered all these comments before completing this statement. For its part, Nottinghamshire County Council confirmed it had no further comments it wanted to make.
What I found
- Behind Mr B’s house is a rear garden with a watercourse running behind, which I will call ‘the southerly watercourse’. This divides the garden from allotments behind. Mr B refers to this watercourse as a ‘leat’, because he understands its original purpose was to channel water away from a watermill upstream.
- Behind the allotment gardens is a second watercourse which I will call ‘the northerly watercourse’. Mr B understands this originally served the same purpose.
- Bassetlaw District Council owns the allotments. It also owns the land through which the southerly watercourse runs immediately upstream from Mr B.
- Further upstream again is a caravan park near the site of the old watermill. In Autumn 2014 Mr B noted and reported to the District Council the owner of the caravan park had filled in part of the southerly watercourse running through their land.
- In response to Mr B’s report the District Council visited the site. It found the southerly watercourse partially filled in. It advised the site owner they needed planning permission for this. A planning application followed in April 2015 and the District Council later approved it.
- Before the site owner gained permission for the works they installed a pipe into the watercourse. This created a culvert, rather than filling in the watercourse.
- Also the District Council consulted with the County Council. It visited the site and undertook CCTV surveys of drains under the caravan park (November 2014). It decided surface water from the site and area around it drained into the northerly watercourse and the southerly watercourse was therefore largely redundant.
- However, Mr B says the flow of water into the southerly watercourse only declined after the culvert construction in the caravan park section. He says he previously enjoyed the watercourse which attracted wildlife and benefitted his allotment.
- Mr B considers there were flaws in the culvert’s construction. He also considers there could be a greater flow of water in the southern watercourse if the District Council undertook more clearance and maintenance of the section of the watercourse in its ownership. He also considers the Council failing in its responsibility as a riparian owner of the watercourse. Mr B argues this means it has a legal responsibility to ensure no interruption to the flow of water behind his garden. Mr B says if the District Council is not ensuring a water flow then the County Council should take enforcement action against it.
- The District Council recognises the southerly watercourse is in “poor condition” due to rubbish deposits from allotment holders and property owners whose homes border the watercourse. It provides photos showing the condition of the watercourse near the boundary with Mr B’s property. It identifies obstructions in this location also. So to clear the watercourse needs action by Mr B and other landowners also. It says “in an ideal world with limitless funds it would be good to clear the watercourse, have it free flowing and be a haven for wildlife”. But “the reality is it would cost riparian owners a great deal of money to restore and possibly involve the serving of notice under the land drainage act”. The Council says as there is no flood risk it cannot justify this. Although it does offer a further meeting with Mr B to “discuss a way forward”.
- The County Council recognises the caravan park did not obtain ordinary watercourse consent for the culvert construction. But notes there is no retrospective consent procedure (in contrast to planning permission which can be given retrospectively). It considers no enforcement necessary as it has no concerns about the culvert’s construction considered following the consultations with the District Council and actions of the site owner described above.
- Since 2015 Mr B has persistently raised his concerns about the southerly watercourse with both authorities, largely by telephone. Representatives from both Councils met him on site in Autumn 2016 to try and resolve his concerns. Later the County Council also replied to a complaint about this matter. However the District Council declined to investigate a complaint on the basis the events at the centre of the complaint took place more than 12 months previously. Although the District Council did also provide some explanation for its officer’s thinking about the matters at the crux of the complaint, expanded on following its most recent site visit summarised at paragraph 19 above.
The Ombudsman’s jurisdiction
- There are two jurisdiction issues I must consider. The first is that of time. Mr B’s complaint is a late complaint because the events at the centre of the complaint took place more than 12 months before he complained to us. However, I consider there are special reasons justifying an investigation. In particular I note that since the culvert construction Mr B has not dropped his complaint there has been reduced water flow in the southerly watercourse. He also says this is due to the District Council not clearing obstructions, which remains an ongoing issue and not something rooted in the past. It is reasonable therefore we consider if there is anything more either Council should be doing to address his concerns now.
- The second issue is that of the role of the Courts. They are relevant as it is the Courts which settle disputes about riparian ownership and claims of a ‘right to water’. I do not propose to decide on whether Mr B has such a right or if the District Council or any other landowner has interfered with his rights. This is because I consider these are only questions which the Courts could properly rule on with their experience and expertise in such matters. It is not our role to adjudicate disputes usually for the civil courts. I find no grounds to make any exception in this case.
The actions of the County Council
- I will consider the actions of the County Council first because under the Land Drainage Act 1991 it is the responsible authority for approving changes to watercourses and enforcing against unauthorised changes. It is therefore this Council whose opinion is crucial in understanding why both authorities consider the changes to the watercourse made by the caravan park are acceptable.
- The Council correctly says that it cannot insist retrospectively on a land owner applying for ordinary watercourse consent where they have already made changes to a watercourse (for example by creating a culvert). So in this case when the County Council learnt of the changes to the southerly watercourse it could only consider taking enforcement action. The Land Drainage Act empowers the Council to take such action to “reinstate a water course so it does not impede the flow of water or cause a flood risk”.
- However this does not mean the Council is under any duty to take enforcement action. The action is at its discretion. The Council has set out why its officers did not consider using such discretion in this case. I would briefly summarise those reasons as follows:
- that the southerly watercourse has only a limited purpose in draining water in the vicinity; most surface water drains into the northern watercourse instead;
- that in any event the southerly watercourse remains piped so it can still act to drain water that does not flow into the northerly watercourse;
- that therefore it is not impeded and poses no flood risk.
- I cannot see that I have any grounds to find fault with this decision. As I explained above (paragraph 6) my role is not to challenge the merits of a decision properly reached by a Council officer. In this case I consider the decision properly reached because the officer clearly took account of the site before deciding not to take action. They visited the site and crucially also arranged for the underground CCTV survey. They relied on the relevant information gathered through these inspections and did not rely on any irrelevant information. There is no evidence I have seen which would contradict the view the southerly watercourse poses no flood risk.
- I recognise there may also be a role for the County Council in considering enforcement action against the District Council and/or other landowners whose properties border the southern watercourse if they are impeding a water flow. But I stress the Council’s enforcement powers are discretionary. I do not consider the weight of evidence supports the view the District Council was impeding water flow in the southerly watercourse when the County Council’s officer visited in October 2016. Therefore I again have no reason to question the Council’s view that no enforcement action was justified at that time.
- Consequently I cannot uphold this complaint.
The actions of the District Council
- It follows from what I have said above the District Council had no grounds to refuse the caravan park planning permission to culvert the southerly watercourse. It properly consulted with the County Council and took account of its views before deciding the planning application. It explained all this in its planning officer’s report. I considered it could reasonably rely on the County Council’s expertise. So there was no fault in the District Council decision not to refuse planning permission for the changes to the watercourse.
- Since then I am also satisfied the Council has properly considered whether it should take any action to cleanse the southerly watercourse as Mr B suggests. It has explained why it sees no grounds to do that. Again I consider this a decision properly reached. The Council has explained that it would only take action to cleanse a watercourse where it posed a health and safety risk such as through flooding. While I would always want the Council to be a ‘good neighbour’ in maintaining land it owns, I consider it entitled to prioritise work this way given that it has finite resources. It has clearly been out to the site since 2014 and met with Mr B. So it is basing its judgment on relevant information and I cannot see anything irrelevant in its consideration.
- Consequently I cannot uphold this complaint either.
- I recognise this will be disappointing for Mr B. I do not doubt his sincerity in wanting to see a regular flow of water in the watercourse or his experience in seeing that decline in recent years. Nor do I dismiss any concern he has that the caravan park culvert did not follow best practice construction guidelines. But none of these are grounds which would justify either authority in this case taking further action. Both authorities can only act to prevent (or try to reverse) changes to a watercourse where justified by laws to protect the public interest. They have explained why they find these tests not met in this case and while Mr B may disagree I would ask him to accept there is no fault in those decisions. The District Council has offered a further meeting to consider if there are any other actions it can take. I could not ask it to do more.
- For the reasons set out above I cannot find fault in the actions of either Council in this case. I have therefore completed my investigation of these complaints satisfied with their actions.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman