Summary: Mrs D complained the Council, in its role as a Lead Flood Authority, failed to take enforcement action against her neighbour for works to his garden which impacted their underground drainage system. As a result, she said she experienced distress due to flooding of her garden and risk of flooding to her property. She also had financial costs to flood proof her property. We found no fault in the process the Council followed to reach its view not to take any formal action. We cannot therefore criticise the merit of its decision.

The complaint

1. Mrs D and her representative, Mr X, complained about the Council’s handling of her concerns relating to flooding from her neighbour’s garden. They said the Council:
• wrongly found it had no authority to act and therefore failed to take suitable action against her neighbour;
• failed to take action to prevent flooding of her property under its permissible powered; and
• failed to provide Mrs D with enough advice and information.
2. As a result, Mrs D said she has experienced distress and uncertainty, and physical injury. He also said her garden has been damaged and she has had costs to flood proof her property.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. 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

8. As part of my investigation, I have:
• considered Mrs D and Mr X’s complaints and the Council’s responses;
• discussed the complaint with Mr X and considered the information he provided;
• made enquiries with the Council and considered the information it provided; and
• considered the law and Council Policy relevant to the complaint.
9. Mrs D, Mr X and the organisation 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

Ordinary watercourses

10. An ordinary watercourse is a watercourse that is not part of a main river. It includes rivers, streams, ditches, drains and culverts (but not public sewers) through which water flows.
11. The Land Drainage Act (the Act) prohibits the obstruction of an ordinary watercourse without the consent of the Lead Flood Authority concerned. Section 23 of the Act states:

“No person shall—

• erect any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction; or
• erect a culvert in an ordinary watercourse, or
• alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse.
1. A Local Flood Authority has powers under the Act to serve a notice on the person responsible requiring them to remove an unconsented obstruction or set out the works to be carried out where the flow of an ordinary water course is impeded. Failure to comply with a notice is an offence.

Council Policy

13. The Council is the Lead Flood Authority. It Culverting Works and Drainage Maintenance Protocol 2019 (the Policy) says riparian owners have legal duties, rights and responsibilities under common law and the Land Drainage Act 1991 for watercourses passing through or adjoining their land. These responsibilities are to:
• pass on the flow of water without obstruction, pollution or diversion affecting the rights of others;
• accept flood flows through their land, even if these are caused by inadequate capacity downstream;
• maintain the banks and bed of the watercourse and keep structures maintained; and
• keep the bed and banks free from any artificial obstructions that may affect the flow of water including clearing litter, heavy siltation, or excessive vegetation.
14. The Policy says although the Council has permissible powers to carry out works to reduce the flood risk related to Ordinary Watercourses, it:
• will only do so as a last resort and this does not replace the responsibilities of the riparian owner under common law and the land drainage act; and
• expects persons affected to exhaust all avenues to resolve the drainage issue first, including private negotiation, bringing the matter to the Agricultural Land and Drainage Tribunal (the Tribunal), or to court.
15. However, it will use its powers under the Act to undertake works to third party riparian drainage when the risk of internal flooding to adjacent properties are very significant and requires immediate action.

Background

16. Mrs D’s home is on a hill, which slopes down towards her garden. She has a neighbour, Mr Z, who owns the neighbouring property which is located at a higher level on the hill. They are both riparian owners.
17. The area Mrs D lives in is known to have a high ground water level. Due to this, and the nearby hill, the area is classed as a flood risk area. When Mrs D’s and Mr Z’s properties were built, pipes were placed under their gardens to bring water away into nearby drainage channels.
18. Mrs D said she had never had any flooding issues within her property boundary.
19. In 2020 Mr Z did works to his garden which included excavating soil, hard surfacing. He also built a retaining wall between his and Mrs D’s property boundary.

What happened

20. Mrs D said she experienced flooding of her garden for the first time in 2020 after it had rained. She told the Council this was because of the works Mr Z had completed in his garden which redirected flood water towards her property and the existing under garden drains were no longer working.
21. Mrs D also contacted the builder who had developed her and Mr Z’s homes. He provided a drawing of the drainage system which had been placed under the gardens, including how Mr Z’s works may have impacted this.
22. The Council inspected Mrs D’s and Mr Z’s properties in its role as a Lead Flood Authority. It found there was no need for it to make further input, but it could provide advice as needed. This was because:
• Mr Z had undertaken works to mitigate flooding and had cleared out the watercourse which ran alongside the properties;
• the likely cause of the flooding was from ground water and the high water table in the area which had saturated the ground; and
• its meeting with Mrs D and Mr Z showed there was a general agreement to work together to mitigate the impact.
23. Mrs D disagreed with the Council’s view. She said the issue was not due to ground water as the existing drainage system had managed this well over the years. However, the flooding issue was caused by the works Mr Z had done. She said she wanted the drainage system restored and asked the Council to speak with the builder who developed the properties.
24. Mrs D received a letter from Mr Z which offered to settle the issue without accepting liability his works caused any damage. The offer included conditions the payment would first be paid when Mr Z sold his property and no further damage claims could be made. Mrs D did not accept the offer.
25. Mrs D asked an advocate to contact Mr Z on her behalf. The Advocate asked questions of Mr Z and set out the proposed works he should do to rectify the flooding issue. However, Mr Z did not engage with the advocate.
26. The Council told Mrs D it accepted there was an issue with the drainage. However, it told her:
• Mr Z had not notified the Council about the commencement of his works, but it would have granted consent based on his drawings and plans. It later found its consent was not required as the works was not on an existing ordinary watercourse as set out in the Land Drainage Act 1991, it therefore had no jurisdiction to take any action against Mr Z’s;
• it believes the flooding issues were caused by damaged drains or the emergence of ground water which had previously transferred through the existing drains before Mr Z completed his works; and
• it had considered its proportionate use of its responsibilities and permissible powers. However, it found this was a private matter between her and Mr Z as riparian owners. It advised her she could bring her concerns to the Tribunal.
27. Mrs D continued to raise her concerns with the Council and asked it to inspect again. She also asked her local MP to raise her concerns. However, the Council told her it had not changed its view.

Mrs D’s complaint

28. Mrs D was unhappy with the Council’s handling and decisions about her flooding issues. She and her representative, Mr X, complained to the Council. The key parts to their complaint were the Council failed to:
• provide and explain its complaints procedure to Mrs D;
• identify the specific policies and guidance on which it based its decision and it had not properly responded to Mrs D and Mr X’s detailed questions;
• acknowledge the presence of an Ordinary Watercourse which passes through Mrs D’s and Mr Z’s land. They said this was the pipes beneath the gardens which had originally been laid to establish a culverted watercourse to allow fell water to flow safely through the gardens;
• acknowledge Mr Z works, including his retaining wall, required the Council’s consent which should have been refused due to the disruption to the existing flow of water;
• comply with its statutory duties to take enforcement action against Mr Z for the works in his garden which altered and obstructed the watercourse, as set out in the Land Drainage Act 1991 and its own guidance;
• take action under its permissible powers to prevent flood damage to Mrs D’s property; and
29. In response the Council did not change its view. It said it considered the drainage issues through its site inspection, photographs and map data. It found there was no Ordinary Watercourse. However, regardless of this, Mr Z’s development did not require its consent. This was because the works was not by design causing an obstruction or impeding the drainage. It said this meant it had no jurisdiction to take enforcement action under the Land Drainage Act 1991
30. The Council also said:
• it found Mr Z may have damaged the existing underground drains when he built the retaining wall. However, such damage would be a private matter between Mr Z and Mrs D as riparian owners. It had provided Mrs D with information and advice as set out in its Policy, which included her right to bring the matter to the Tribunal;
• it did not use its permissible powers as Mrs D had not had internal flooding, and she had not exhausted all other avenues such as private negotiation or the Tribunal first, which was in line with its policy;
• it had not made reference to specific polices and guidance to ensure its information and view were assessable to Mrs D, but it had since explained its decision in more detail;
• it acknowledged Mrs D and Mr X disagreed with its interpretation of the relevant legislation, but this would need to be challenged in court; and
• it accepted it had failed to provide and explain its complaint process to Mrs D at an early stage and apologised.
31. Mrs D and X continues to disagree with the Council’s decision. They asked the Ombudsman to consider their complaint. They also said bringing the drainage issue to the attention of the Tribunal is not appropriate due to the length of time such action would take, and they believe it will not be able to consider the matter as the drainage issues are not on agricultural land, but on development land.

Analysis

32. The law provides Lead Flood Authorities with a discretionary power, rather than a duty, to pursue enforcement action against breaches of the Land Drainage Act. This means that Authorities are not obliged to pursue enforcement action in all cases but can do so if they consider it is appropriate. It is for the Authority, not the Ombudsman, to decide whether or not to take enforcement action. The Ombudsman’s role is to consider whether there was fault in the processes and procedures followed by the Authority.

Ordinary watercourse

33. The Council in its role as Lead Flood Authority decided Mrs D’s and Mr Z’s piped drainage system under their gardens was not an ordinary watercourse. I have not found fault in the process or procedure the Council followed before it reached its view. I cannot criticise the merits of its decision. In reaching my view, I am conscious it:
• inspected the site and spoke with Mrs D and Mr Z;
• considered the available maps and data for drainage and watercourses in the area;
• considered Mrs D’s and Mr X’s concerns and views; and
• considered the relevant law and its own Policy.
34. While I understand Mrs D and Mr X’s disagrees with the Council’s interpretation of the law relevant for the works Mr Z completed, it is not for the Ombudsman to reach a view on the legal interpretation on such technical matters. Such matters Lead Flood Authority, and ultimately the courts, who are best placed to reach a view.

Consent and enforcement powers

35. Regardless of whether Mrs D’s and Mr Z’s under garden drainage systems are part of an ordinary watercourse, the Council found Mr Z’s development did not require its consent.
36. I agreed with the Council’s view. This is because there was no overground watercourse, and the design and plans for Mr Z’s works were by its design not obstructing or impeding an underground watercourse. This did therefore not require the Council’s consent under the Land Drainage Act 1991.
37. The Council’s enforcement powers were therefore limited to its permissible powers under section 21 of the Act. The Council’s Policy says it will only use such powers where:
• the affected person has exhausted all avenues to resolve the issue, including bringing the matter to the attention of the Tribunal; or
• there is a very significant risk to internal flooding of property.
38. I acknowledged Mrs D and Mr X believes the Tribunal cannot consider their concerns, and private negotiation with Mr Z has not resolved the matter. However, I am of the view the Tribunal can consider the matter, and it would be appropriate for Mrs D to bring her dispute with Mr Z to its attention.
39. Also, I understand the Council has considered the significant flooding Mrs D has had to her garden. However, it found this did not amount to a very significant risk of internal flooding to her property. As the Council reached its view in line with its Policy and there is no evidence Mrs D experienced such flooding to her property, I cannot criticise the merits or its decision.

Complaints handling

40. The Council accepted it failed to provide and explain its complaints process to Mrs D at an early stage and apologised to her. I am satisfied this was enough to remedy any injustice this caused.
41. I acknowledge Mrs D and Mr X believes the Council failed to respond properly to their concerns and questions. However, I have not found the Council at fault. The Council’s provided its view to Mrs D and continued to provide a response to her and Mr X’s concerns. This was both informally and formally under its complaints process. While Mrs D and Mr X may disagree with the Council’s view, it was not at fault in how it responded to their concerns.

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Final decision

42. I have completed my investigation with a finding on no fault by the Council.

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Investigator's decision on behalf of the Ombudsman