Summary: Mr Q complains about the Council’s response to various matters connected to problems he reports with waterlogging and flooding of land. We find fault in how the Council has reviewed drainage arrangements serving a nearby housing development, agreed following an earlier complaint. We consider this fault has cause injustice to Mr Q (and others) in the form of ongoing uncertainty about whether more might be done to alleviate the problems he reports. The Council accepts this finding and has agreed action to remedy this injustice. The details are set out at the end of this statement.

The complaint

1. Mr Q complains about the Council’s response to various matters connected to problems he reports with waterlogging and flooding of land forming part of his home. Mr Q’s concerns can be summarised as follows:

• That further to an earlier complaint to this office, the Council has not resolved problems with water running off a neighbouring housing estate on to his land.
• That by allowing surface water from the development to flow into a watercourse or ditch that crosses his land, and allowing further connections to the same, the Council has exacerbated problems caused by that watercourse being illegally connected to the local sewer network.
• That the Council has not adequately investigated or responded to flooding events on his land.
• That the Council has not resolved flooding problems on the highway, opposite the entrance to the driveway to his home.

2. Mr Q says as a result, since the completion of the neighbouring housing estate his property suffers problems with waterlogging on the boundary it never experienced before. Since May 2019 Mr Q has reported frequent high levels of water in the watercourse. In October 2019 it caused his driveway and garage to flood. On several occasions since the ditch has overflowed or been close to overflowing. This has caused Mr Q distress. It has led him to incur increased buildings insurance costs.

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The Ombudsman’s role and powers

3. 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), as amended)
4. 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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. Before issuing this decision statement I considered:

• Mr Q’s written communications with this office and any further information he provided in telephone conversations and emails.
• Information provided by the Council in response to enquiries.
• Information in the public domain associated with the Council’s grant of planning permission for a housing development adjacent to Mr Q’s home.
• Information provided by Mr Q’s local water company in response to enquiries.
• A previous investigation by the Ombudsman into a complaint made by Mr Q.
• Comments made by the occupiers of six nearby houses and one former resident in support of Mr Q’s complaint.
• Relevant law and policy referred to in the text below.
• Comments made on two draft decision statements sent to Mr Q and the Council for comment where we set out our thinking about this complaint.

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What I found

Relevant Legal and Administrative considerations

8. The Council is a Lead Local Flood Authority (LLFA) as defined by the Flood & Water Management Act 2010. This means it has responsibility to lead on managing flood risks caused by surface water, ground water and ordinary (small) watercourses. Among other matters, the Act requires the Council:

• to prepare and maintain a strategy for local flood risk management;
• to carry out works to manage local flood risks in its area;
• to investigate significant local flooding incidents and publish the results of those investigations;
• to exercise powers under the Land Drainage Act 1991; this contains powers to issue consent for altering, removing or replacing certain structures or features on ordinary watercourses and enforcing obligations to maintain flow in a watercourse and repair watercourses, bridges and other structures in a watercourse.

9. The Council’s flood risk strategy says that it will carry out a ‘post incident review’ where flooding results in:

• major disruption to the flow of traffic for 12 hours or more;
• a risk (or potential risk) to human health;
• an adverse effect on critical infrastructure;
• harmful impacts to environmentally and socially important assets;
• internal flooding to a property used for residential or commercial premises.

10. The flood risk strategy also explains how the Council will approach the “management of assets other than highway gullies, such as ordinary watercourses and ditches”. The strategy says that management of such assets “is often poor where local land-owners are responsible especially when culverting has taken place”. The Council says that its strategy involves locating such features and establishing ownership. It can take enforcement action in an “extreme situation”.
11. If someone owns land adjoining, above or with a watercourse running through it then they are referred to as the ‘riparian owner’. The law says you must let water flow through your land without obstruction, pollution or diversion which affects the rights of others. If anyone plans to obstruct or culvert a watercourse then they should apply to the Council for consent under the Land Drainage Act 1991.
12. The Act also gives the Council powers of enforcement, including in certain circumstances the power to undertake works and bill the riparian owner for the costs of those works. The relevant sections of the Act are quoted in the Council flood risk strategy document.
13. The Act also gives individuals power to go to a Land Drainage Tribunal where they consider the drainage of neighbouring land requires either the carrying out of work in connection with a ditch passing through other land or the alteration or the alteration or removal of any drainage work in connection with such a ditch.

Background – site details & relevant planning history

14. Mr Q lives in a residential area in the Council’s district. His house lies around 70 metres to the east of a road running in approximately a north-south direction. His house is located behind other houses and so has a long driveway from that road. Behind his house is a detached garage.
15. Further to the east of Mr Q’s house is a housing development with Mr Q’s garage roughly adjacent to the north-west corner of the development site. The Council gave planning permission to the development in principle in May 2015. Although because the developer and Council needed to complete a legal agreement, permission was not finally approved until May 2016. The development land was previously open fields.
16. With their planning proposal the developer submitted a Flood Risk Assessment (FRA). This said the developer would raise land levels on the development site to accommodate drainage for the new houses. But the new houses would match surrounding houses in height. The FRA proposed surface water from the development would flow into a ditch or watercourse running to the north of the development site (from now on I will refer to this as ‘the watercourse’). As the watercourse runs downstream it passes into Mr Q’s ownership. It then passes into the ownership of another private owner before it enters the sewer network owned by the local water company.
17. The FRA said the developer would widen the watercourse to cope with increased water flows. This would compensate for any loss of natural storage provided by the field being developed. The developer would also ensure there were measures to prevent too much water flowing into the watercourse at any one time. This would include installing underground storage tanks and brakes on the surface water drains to regulate water flow.
18. The FRA did not suggest the need for drainage on the western boundary of the site, closest to Mr Q’s home. It did contain a general comment that “the site can be developed without increasing flood risk elsewhere”.
19. During the consideration of the planning application Mr Q raised objections to the development. This included his concerns the watercourse would not cope with increased water flowing from the development. As part of his objections Mr Q provided photographs showing the watercourse would sometimes fill and overflow on his land.
20. The Council approved planning permission subject to conditions. These included the developer providing details of a satisfactory drainage scheme. The developer also being required to provide “details of ground levels of the application site and the adjoining residential properties, proposed ground levels and level of proposed floor slabs”. The reason for this was the “nature of site and adjoining uses”. The planning permission also required the developer set up a company to manage the stretch of watercourse passing through the development site.
21. In September 2016, the developer applied for permission to discharge the drainage planning condition. This showed houses nearest Mr Q’s property would be built approximately 1.5metres above ground level. The plan did not show Mr Q’s property.
22. The Council approved the discharge of the planning condition in November 2016. It did not further consult with Mr Q. It did not prepare a report explaining why it approved the discharge of conditions. But officers did undertake further consultation with the Council’s flood prevention team and the local water company. Both confirmed their satisfaction with the planned arrangement, raising no objections to the developer’s plans. I note by now the water company had agreed in principle to adopt the sewers on completion of the scheme.
23. Around the same time Mr Q contacted the Council’s planning enforcement service unhappy with the banking of land now taking place on the boundary of his property. A Council enforcement officer visited. They checked with planning officers and flood prevention officers noting those officers knew of and had approved the developer’s actions. The enforcement service therefore found there was no breach of planning permission and so it could take no further action. It closed its investigation in December 2016. But the enforcement officer still noted they had “concerns over the drainage”.
24. In November 2017, a further enforcement investigation opened after contact from Mr Q and other residents living on the western side of the development. Mr Q reported land on the boundary had become “very wet” and sent the Council photographs to illustrate this. Other residents bordering the development site reported increased surface water in their gardens.
25. The Council’s enforcement officers liaised with its flood prevention team. The Council then decided to liaise with the developer to install a drain on the western boundary of the site to flow into the watercourse. And in May 2018, the developer presented a new application to discharge conditions attached to the 2015 planning permission. The Council took the view it would not be in the public interest to stop the drain installation before deciding this application. This is because it considered the drain would help relieve the flooding problems caused along the western boundary.
26. Mr Q filmed the developer installing the drain. He said this showed the developer had not complied with the plans they presented. In particular the drain had not been installed on gravel as shown in the plans. It also appeared to have a break in it. The Council declined a request made by Mr Q to view the footage.
27. The Council went on to refuse the May 2018 planning application. This followed consultation with both the water company and its own flood risk prevention officers. The water company asked for more information about drainage plans for the site. While the flood risk prevention officers wanted a meeting with the developer. This was to ensure “the design solution proposed does not increase the risk of flooding to adjacent land”. Those officers said, “we are not confident the proposed solution would effectively restrict back up flow during periods of high water levels downstream”.
28. The Council held further meetings with the developer in October 2018, January and February 2019. The developer agreed some modifications to the drain installed on the western boundary and presented plans showing these. The Council considered the proposals acceptable in principle.
29. Separately the developer also went on to set up a company to manage the watercourse running to the north of the development site. This company now owns the watercourse upstream of Mr Q.

Previous Ombudsman investigation

30. In March 2019, we completed investigation of an earlier complaint made by Mr Q. Because of the passage of time we decided not to investigate how the Council had responded to Mr Q’s objections to the planning application. We considered that a late complaint.
31. However, we decided we could investigate how the Council had discharged the relevant planning condition agreeing drainage arrangements for the development site. We could also investigate its planning enforcement service response to reports of increased water entering Mr Q’s land from the western boundary of the development. And the events subsequent to that, described above.
32. We found the following:

• The Council was at fault for not considering the potential impact of raising land levels on the boundary to Mr Q’s land when approving the discharge of the planning condition covering drainage. Planning permission relied on a FRA which said houses would be built to match levels of surrounding properties. But the Council had permitted development at a higher land level. It could provide no records to show it had noted this difference in land levels or considered any potential impacts.
• We considered this caused Mr Q injustice in the form of distress. We could not say if the waterlogging Mr Q reported on his boundary may have been prevented but for the fault and we took no view on whether Mr Q had suffered financial loss. But the Council’s inattention and lack of records caused uncertainty about whether this may have been avoided.
• We did not consider the Council at fault for approving the surface water drainage into the watercourse. We found there was suitable consultation on this scheme with the local water company into whose sewer network the water would flow and the Council’s own specialist flood risk officers.
• But it was further fault for the Council to allow the developer to install a drain to serve the western boundary of the development site that flowed into the watercourse without consultation with its own flood risk officers and the water company.
• It was also fault for the Council not to have considered concerns Mr Q raised about how the developer had installed the drain on the western boundary. This included not viewing the film Mr Q said he had showing the installation.

33. The Council accepted these findings. As part of the remedy for Mr Q’s injustice it agreed to complete a review of the drain serving the western boundary of the housing development. This would include viewing Mr Q’s film. It would also consult further with the water company. It would write to Mr Q with its findings.

Review of the drainage serving the western boundary

34. In May 2019 the Council wrote to Mr Q setting out its findings from the review. It said that Mr Q’s film “appears to confirm” a poor quality of workmanship in fitting the drainage on the western boundary. It acknowledged the drain sat on soil, not gravel as the developer had indicated on plans. The Council said viewing the film had been a “useful process” but it did not intend taking further action in respect of the drain.
35. The Council said that its planning and flood risk officers had met with the developer (see paragraph 28). The developer had agreed to fit a “non-return valve on [the] overflow outlet” serving the drain. The Council asked for this to regulate water flow into the watercourse, to help prevent it overfilling. The Council subsequently checked this was done. The Council said this action addressed the concerns those officers had in 2018 when the developer fitted the drain.
36. The Council said it had discussed the drain further with the water company. The water company noted the developer had not asked it to adopt the drains serving the site. Consequently, “there are limitations to their future responsibility and role in this regard”.
37. We subsequently asked the Council to clarify, why, if the review identified deficiencies in the installation of the drain it had resolved not to take further action. It said that:

• It considered any problems with installation “insufficient to cause any material problem”. It does not believe the drain has any harmful affect.
• That in the event the drain did cause significant flooding on to Mr Q’s land that it retained powers to investigate under the Flood and Water Management Act 2010.

38. In comments on a first draft of this decision the Council also said that it took this approach noting the land around the western boundary was subject to some surface water flooding before any development took place.
39. During this investigation Mr Q has brought to our attention that the developer has also installed drainage to the east of the housing development site. This did not appear on the original approved plans for the housing development but was shown on the May 2018 plans which the Council refused. Mr Q has concerns that this additional drainage further adds to the flow of water entering the watercourse. The Council has said this ‘small diameter perforated land drain’ will have an insignificant impact on the watercourse. It considers this is a way of managing natural water run-off into the watercourse and so it will not contribute to increased flows and it has no objection to it.
40. During this investigation we also noted emails sent by the Council to the developer in January 2019 where it noted a commitment by the developer to dig down and inspect a section of the drain installation. The developer would also check the gradient on the drain. We saw no evidence the Council received confirmation the developer completed these actions before the Council indicated it approved of the drain installed on the western boundary. The Council says it only expected the developer to let it know if its investigations revealed any problems.

Events since March 2019 & our investigation

41. In May 2019 Mr Q noticed high levels of water in the watercourse where it passes through his land. He contacted the water company. When the Council wrote to Mr Q in May 2019 it also referred to this matter. It said there was ‘a potential blockage’ in the sewer the watercourse connects to. The water company would investigate this. The Council did not believe there was any linkage between this matter and the drain installed to serve the western boundary of the housing development.
42. In October 2019 water levels rose again and this time Mr Q experienced a flooding event on his property. Water backed up from the watercourse through surface water drains on Mr Q’s land. It flooded part of his driveway and his garage. This flooding coincided with high levels of rain across the Council’s area and various other local flooding incidents.
43. In November 2019, January and February 2020 Mr Q reported more water coming on to his land following increases in the level of the watercourse. The Council comments that this was a time of wet weather with land locally being saturated and localised flooding.
44. Later in February 2020 Mr Q advised us he could no longer obtain buildings insurance from his previous provider. He subsequently obtained cover but says his premiums have increased by around £1000 a year.
45. In April 2020 Mr Q again reported the watercourse filling. This did not coincide with rain.
46. Mr Q has sent me emails from neighbours who live along the highway where he lives. Their houses are much closer to the highway and have long back gardens that border the housing development. They have reported further waterlogging to their gardens. They say they did not have these problems before the housing development adjacent. During this investigation I have also been contacted directly by two of Mr Q’s neighbours who have repeated similar statements. They all say their gardens have experienced more surface water after the housing development began.
47. As well as contacting the Council about some of these events, Mr Q has been in regular contact with the water company. We have also contacted the water company to gain its understanding of the problems Mr Q reports.
48. The water company agrees the watercourse connects into its sewer network. However, it appears its original course has been stopped up and diverted beyond Mr Q’s property. A CCTV inspection from the water company identified this in 2016. Mr Q believes the diversion took place in the 1990s.
49. We note Mr Q told the Council about the diversion of the watercourse in June 2016 and the water company confirmed it. The Council said at the time it did not know who was responsible for blocking the watercourse (Mr Q contends it was a former owner of a neighbouring property). We note the Council said in July 2016 the information provided by the water company posed various questions as follows:

• Why and when was this culvert bricked up and by whom?
• Where does the system potentially drain to?
• What would be the impacts of re-instating the drainage line?
• Who has responsibility for the culvert?

50. The Council and water company agreed to meet and discuss these matters. It said a meeting could “explore further any useful works that may help reduce mutual flooding and flood risk issues locally”. However, there is no evidence such a meeting took place. Or, if it did take place what was discussed and what was agreed.
51. In January 2020, further to Mr Q’s more recent contacts, the water company contacted the Council again. It said: “We believe that as this is a land drain this is Cheshire East Council responsibility to remove the connection from our sewer […] [Mr Q] has also experienced over land flooding from the land drain.” Elsewhere the water company has referred to the connection of the watercourse to the drain as an illegal connection.
52. The Council said in response: “It is unclear exactly when these alleged alteration works […] were carried out and with whose permissions; the works may even pre-date the LLFA existence [2009] and hence, would have been a matter regulated by Environment Agency or former National Rivers Authority. Any proposals to alter the existing drainage arrangements would need to be investigated in detail to ensure flood risk to property downstream is not made any worse. An alternative drainage proposal would also need to be approved and justified”.
53. It is understood the water company wanted to discuss this response further with the Council at what it has referred to as ‘flood group meetings’. The Council has not referred to meetings of this name but says it does hold ‘planning liaison meetings’ with the water company. These are “informal general meetings in which information about key strategic developments in the whole of the borough is shared and discussed […] as well as discussing general updates on best working practices for planning conditions amongst other issues”. No such meetings have taken place since the outbreak of the COVID-19 pandemic. The Council says that while it notes the problems Mr Q experiences it regards this matter as a ‘low priority’.
54. In general comments on a draft of this decision the Council has said that where the watercourse passes through Mr Q’s land it goes through a small diameter drain. It believes any blockage, siltation or debris in that location could also contribute to the watercourse overflowing.
55. Towards the end of this investigation, in January 2021, the watercourse again overflowed during the ‘Storm Christoph’ event which brought much flooding to the region locally. Mr Q and several neighbours made me aware of this and shared photos of water flooding on to land. The Council has confirmed it will be compiling a report on the flooding events covering the area, using its powers under the Flood and Water Management Act.

Highway drainage issues

56. During this investigation Mr Q has made us aware that since early 2018 he has also reported problems with highway drainage. Water has pooled on several occasions on the highway approximately opposite the entrance to the driveway serving Mr Q’s home. In November 2019, the Council explained it had previously jetted gullies in the location. But that it would undertake further investigation including into the cause of sinkholes on the highway close to where there has been standing water. The Council implied the matter was not a high priority as while water pooled on the highway, both vehicles and pedestrians could pass without having to swerve to the opposite side of the highway or walk into the road.
57. In January 2020 the Council undertook jetting of highway gullies and carried out a CCTV inspection. It said this identified a blockage in the highway drainage elsewhere which it will clear. It is also to investigate the cause of sink holes on the highway in that vicinity. In July 2020 the Council told us it was programming this work but could not provide a date for its completion.
58. Mr Q advises that in February 2021 contractors for the Council were on site for several days investigating issues with highway drainage. A Ward Councillor forwarded an email from one of the Council’s Highway Engineers which referred to making “good progress” in clearing the system. But also referred to the need for further investigation and the prospect of further work to improve highway drainage.

Our findings

On the drainage serving the western boundary

59. I am satisfied from both Mr Q’s submissions and those of other neighbours they experience problems with water along the boundary with the development they did not experience before it was built. I cannot say what causes those problems. It could be coincidence that households including Mr Q report more surface water or boggy conditions adjacent to the new housing development. Those conditions could reflect the impact of heavy rainfall on land prone to surface water level flooding before development began.
60. But whatever the cause, the Council has previously accepted it was at fault in its discharge of the relevant planning condition which permitted development on higher land next to the boundary. The remedy arising from Mr Q’s previous complaint was designed to retrospectively ensure a degree of scrutiny to the drainage arrangements along that boundary. Scrutiny missing from the Council’s consideration of this matter in 2016.
61. The remedy took account of events after 2016. We noted the Council had properly encouraged the developer submit a retrospective planning application to install drainage on that boundary to take away the water that would flow down from raised land levels. But it did so without consulting its own relevant officers on the design of that, which then led to the rejection of the developer’s proposal. This led to the unsatisfactory position where drainage served that boundary but did not benefit from planning permission.
62. It did not follow that the lack of planning permission caused any material difference to Mr Q. It is a long established principle the Council does not take planning enforcement action for the sake of it. There is no public interest in requiring a developer to regularise development that is satisfactory and would be approved if they went on to make such an application. But we wanted the Council to assure itself the drainage installed on the boundary met its own officer’s concerns and was fit for purpose.
63. The outcome of the Council’s review is that it considers the drainage on the boundary now satisfactory. It says it only considered the May 2018 drainage plans unsatisfactory as they did not include a return valve, important to regulate the flow of water into the watercourse. The developer has subsequently fitted this. It implies therefore that had the developer included this detail in the May 2018 application it would have approved it. Consequently, there is no merit now in taking enforcement action.
64. The Council said in comments in response to a draft of this decision that it believes the drain could only ever have a ‘limited functionality’. This is because it serves only a small catchment area, has the necessary fitting of a non-return valve and because of the local flood conditions. So, when groundwater is high the drain will fill and discharge via gravity which ‘mimics the pre-development state’. But it cannot flow into the watercourse when that fills. Although it also notes that it retains powers to investigate flooding events should conditions worsen. It implies by these statements the drainage now on the boundary is therefore reasonable.
65. As I explained in paragraph 3, it is not my role to question the judgment of Council officers so long as their decisions are properly reached. In this case, I have considered if we can say this judgment has been arrived at properly. After due consideration, I cannot find this is so. As while the Council maintains the drainage serving the western boundary to the development is now fit for purpose I cannot see this takes account of the following matters, which I consider are all relevant to a decision on this question.

• First, it now accepts Mr Q’s film shows the drain was not constructed in accord with the plans the developer submitted in May 2018. It says the defects will make ‘no material difference’ to Mr Q yet provides no reasons for this statement. I presume the May 2018 plans the developer commissioned required construction of the drain in a way to ensure its efficacy. Yet it appears a key part of that plan was not followed. It is also alleged the drain contained a break, which would presumably reduce its effect. The Council has not explained how these matters will not make a material difference to its efficacy.
• Second, the Council asked the developer to ‘dig down’ and check part of the drain’s construction and its gradient, indicating in January 2019 it wanted more evidence about these matters. Yet despite not receiving this information it did not pursue it. I presume the Council would not have asked for this information if irrelevant to a consideration about the drain’s efficacy. I question how the Council has considered the drain satisfactory without pursuing these matters.
• Third, the fitting of the drain has clearly not resolved the problems which caused Mr Q and other nearby residents to contact the Council in 2017. I think it clear they do not accept the drain mimics the pre-development position. I explained above that I do not consider it follows automatically the housing development causes the problems on or near the boundary with the wetter conditions they report. But that does not mean the evidence shows the opposite conclusion holds true. The Council appears to have done very little to investigate the further problems reported by Mr Q and other neighbours by way of inspection. But given its 2017 investigation clearly saw a need for drainage along the boundary (and this presumably would have been asked for sooner but for the Council’s inattention when the developer submitted plans for housing on higher land levels) it would appear reasonable for the Council to check what difference it has made before deciding it is fit for purpose.

66. The Council also says its limited assessment of the drain’s efficacy has been influenced by its siting in an area of high surface water. I do not follow the logic of this. As this would surely make it more important, not less, to ensure the drain’s satisfactory construction and efficacy.
67. Consequently, I do not find the review undertaken on the drainage serving the western boundary of the development adequate. It is flawed for the failure to take proper account of the factors listed in paragraph 65.
68. This causes Mr Q and other living near to the drain ongoing injustice. As there is ongoing uncertainty about the impact of the failures identified in our earlier investigation.

On issues with the watercourse

69. It is clear from the evidence disclosed to us by the water company the Council knew in 2016 the watercourse to the north of the development site had been stopped and diverted, apparently illegally. It recognised this at that time, and it posed various questions about this action and its potential impact. Yet, at the time there is no suggestion the Council and water company set about answering those questions.
70. I think it regrettable effort was not made to answer them at the time. Mr Q always had a concern the watercourse would not cope with water flows from the development. He views the problems he has experienced since May 2019 as vindication of his concerns.
71. However, it is evident Mr Q experienced problems with the watercourse overflowing before the housing development was built. Further, that the FRA which accompanied the development made proposals to ensure water levels in the watercourse would not exceed those pre-development. Those steps were followed. The Council’s insistence on ensuring a non-return valve on the drain serving the western boundary is also designed to ensure no increased flow into the watercourse. While its comments on the small drain to the east of the site appear reasonable.
72. So while I do not have the expert knowledge to say what causes the watercourse to fill up, I am satisfied there is no obvious reason to attribute this to the development. The fact Mr Q also reports high water levels at times when there is no rain could indicate problems with the watercourse unrelated to water flow from the development.
73. I note the Council has been told clearly by the water company the watercourse has been diverted to its sewer network illegally. I have seen nothing which suggests the Council could not investigate this as it is responsible for investigating and trying to resolve flooding problems associated with ordinary watercourses. This includes consideration of use of its enforcement powers in this area. Its flood risk strategy reflects this.
74. However, its enforcement powers remain discretionary. On reflection, I find no fault in the Council’s view that it should not exercise such powers here. First, the changes to the watercourse seemingly pre-date the Council’s existence (2009). So even if it found grounds to support the water company’s view it would not have legal power to act. I also note here the Council may always struggle to identify who blocked the watercourse and when, questions which would complicate any investigation.
75. Second, in the absence of the problems experienced by Mr Q causing more generalised flooding problems in the area I think the Council can legitimately consider the matter a low priority not justifying enforcement. It would not appear other landowners are affected. This is not to minimise the impact of the watercourse overflowing on Mr Q. I accept this has caused him distress and flooding to outbuildings. But it is not generally the Council’s role to intervene in disputes about watercourses which involve private owners. Its flood risk strategy reflects this.
76. There are three private owners who own stretches of the watercourse between the housing development and where it connects with the sewer network. I consider it reasonable the matter is resolved through investigation and discussion between Mr Q and those other owners. Private owners also have potential recourse to the Lands Drainage Tribunal I referred to above.
77. Although I would still encourage the Council to participate in good faith in any discussions with the water company, should it raise this matter with it again (something it has indicated it will do in recent correspondence with Mr Q). I am also pleased to note that in response to a second draft decision issued on this complaint the Council suggested it would be willing to arrange a ‘condition check’ of the watercourse where it passes from the development land and into the sewer network. This is reflected in the section headed “agreed action” below.

On highway drainage issues

78. I make no finding of fault here. I am satisfied the Council has responded reasonably and proportionately to the reports of standing water which accumulate on the highway near the turning into Mr Q’s home. The Council has responded to remove the accumulations of water and scheduled further investigation to try and resolve the underlying cause.
79. While I note the recent extensive investigations reported by Mr Q in this location, I am not persuaded that before 2021 any drainage problems in this location appeared so severe, or had such an impact on Mr Q, that we could criticise the priority given by the Council to this matter. Although the Council has agreed to keep in touch with Mr Q about this matter, which I welcome.

Other matters

80. As I noted above investigation of this complaint has coincided with the Storm Christoph event in January 2021 which led to widespread flooding in the Council’s area. For the avoidance of doubt my investigation has not sought to interrogate the Council’s response to that event. It therefore remains open to Mr Q or others to make a complaint about the Council’s response, should they consider the Council is at fault in this regard.

Agreed action

81. The Council accepts the findings set out above. In paragraph 68 I have identified where fault by the Council causes an injustice to Mr Q (and others). The Council has agreed that within 20 working days of this decision it will:
1. provide an apology to Mr Q accepting the findings of this investigation;
2. pay Mr Q £250 in recognition of the time and trouble he has been put to in making this further complaint.
82. In addition the Council has agreed to carry out a further investigation into the flooding problems reported by Mr Q and others since the construction of the neighbouring housing development. It has agreed to investigate the drainage arrangements serving the western boundary of the housing development. It will commission an independent drainage engineer to produce a report which will consider:
1. the nature and extent of drainage problems along that western boundary reported by Mr Q and other neighbours to the development site and downstream to the point of outfall to the sewer network;
2. the cause of those problems and to what extent (if any) they can be attributed to the raising of land levels on the housing development adjacent;
3. the efficacy of the drainage installed on the western boundary taking account of any materials the Council can provide; any film Mr Q can provide and any co-operation given by other residents in the vicinity including on the housing development site (such co-operation can only be given voluntarily by third parties);
4. whether the Council is correct to say the drainage installed on the western boundary will not add to water flows into the watercourse (during extreme weather events) that runs through Mr Q’s land;
5. if any problems can be attributed to the drainage installed on the western boundary, whether improvements could be made to that drainage; what impact these would have and at what cost.
83. The Council will commission the report within 20 working days of a decision on this complaint with a view to it completing within three months or as soon as reasonably practicable thereafter. The Council will share that report with Mr Q and others affected and give its response within a further 20 working days of its receipt. Its response will consider whether in the event any recommendations are made at e) above, the Council proposes to take any action to carry those out or to encourage others to do so, including through use of its enforcement powers.
84. For the avoidance of doubt the Council has described the inspection at a) above where it will consider the condition of the watercourse from the point of outfall (of the western drain) to the sewer as a ‘condition check’:

• to enable the Council to consider what further additional actions may be appropriate to help manage future risks;
• to confirm the extent to which this drain contributes to the actual flooding experienced at this location rather than any other perceived contributing factor;
• to help to provide a basis for sound advice to those with continuing interests and the responsibility in protecting their properties from flood risk;
• to establish as much information [as possible] whilst an investigative team is available on site.

85. When writing to Mr Q in accord with the action agreed at paragraph 83 the Council will also update him in respect of any highway drainage works to be undertaken referred to above, unless it has already done so in the meantime.

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Final decision

86. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mr Q. The Council has agreed action that I am satisfied will remedy Mr Q’s injustice and any others affected. Consequently I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman