Summary: The Ombudsman found fault on Miss D’s complaint of Council advice about a neighbour connecting a waste pipe to her downpipe. It failed to fully explain what redirecting it internally might involve. This caused no significant injustice. The Council followed procedure when it investigated her disconnection of the pipe. The Council failed to explain the information it gave her was not conclusive. This caused no significant injustice. It failed to follow the complaints procedure. The agreed action remedies the avoidable injustice caused.

The complaint

1. Miss D is unhappy with the Council’s involvement following her decision to disconnect a neighbour’s bathroom waste pipe from her rainwater downpipe and its failure to:
1. Provide her with advice consistent with that given to her neighbour;
2. Follow its own procedure for environmental health investigations which went directly to threatening legal action; and
3. Failed to deal with her complaint according to its complaints procedure.
2. As a result, the Council’s actions caused her inconvenience, frustration, and led to an expensive legal dispute between her and her neighbour.

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The Ombudsman’s role and powers

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), as amended)
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)

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How I considered this complaint

5. I considered all the information provided by Miss D, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I did not send her a complete copy as the Council sent some information that needed to remain confidential as it concerned a third party. I sent a copy of my initial draft decision to Miss D and the Council and considered their responses. I sent a revised draft decision to Miss D, her solicitor, and the Council. I considered the responses from Miss D and the Council.

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What I found

6. Miss D lives in a listed building in a conservation area and World Heritage Site. She has lived in her house for more than 10 years. The Council bought the neighbouring property and sold it to a builder developer. Miss D claimed at the point of sale, the neighbouring property had one waste pipe connected to her hopper from a washing machine. The hopper, which brings together flows from different pipes, is attached to Miss D’s rainwater downpipe on her property. The downpipe connects to a public sewer drain.
7. In early 2017, the builder sold the neighbouring property. By this time, there was a waste pipe from the neighbour’s bathroom to the hopper. The waste pipe drains the neighbour’s bath and sink. Miss D denies this was in place when she bought the house 13 years earlier.
8. In October, Miss D removed the pipe arguing there was no legal right to make this connection. When Miss D refused to allow its re-connection, the neighbour reported her to the police for criminal damage and to the environmental health team as waste water now fell on to the neighbour’s yard. The Council confirmed it received a complaint about Miss D’s action from the neighbour the same month.
9. An environmental health officer told Miss D the neighbour could connect the pipe and Miss D had to allow this to happen as the neighbour had an easement. An easement is a right given to another person, for example, to use land owned by someone else. Miss D, who said she felt pressured, allowed the re-connection but took legal advice which disputed what the Council said about the easement.
10. In response to my enquiries, the Council explained the easement is set out in the Charges Register of the title document. It also explained when these houses were designed and built, to avoid cluttering pipes and improve the overall look, one rainwater downpipe to the front of Miss D’s property was fitted. This served both properties and was repeated with other houses on the road. Waste water pipes, both foul and grey, serving bathrooms were later added when bathrooms were installed in them. The Council provided photographs taken before Miss D bought her house showing the neighbour’s waste pipe connected to the hopper.
11. Miss D complains officers told her neighbour there was not a problem connecting waste pipes to the hopper. She complains about inconsistent officer advice given to her and her neighbour about this connection as well as interpreting the legal responsibilities between them. When she raised concerns and a complaint, the Council failed to respond, or respond promptly.

Analysis

Complaint a) advice consistency

12. The evidence shows Miss D asked the Council about the pipe in early 2017. I have not seen her query but, the Council’s email to her said any new downpipe to the front of a property would need Listed Building Consent. This is because an owner of a listed building must apply for consent for changes they wish to make to it. An applicant would need to explain why this was the only solution. The email said if pipe work could run internally to the back, or to ground level, that would be desirable. It also explained the Council assesses whether proposed changes are appropriate and sympathetic to the character of the property.
13. In December, Miss D asked the Council about internal re-direction of pipes of her neighbour’s external waste pipe.
14. In February 2018, Miss D received an email from a conservation officer from the Council’s planning team. This said he would not object on heritage grounds to the boxed-in waste pipe running internally and emerging at ground level. A new external downpipe on the neighbour’s property would need Listed Building Consent. The officer considered it unlikely the Council would give consent to it because of its impact on the character and appearance of the listed building itself and the World Heritage Site.
15. In July, the conservation officer visited Miss D’s neighbour. I cannot disclose all details of this visit but, as Miss D knows, the outcome was the Council confirming the re-direction of the external waste pipe inside the neighbour’s property was not an option. This was because of the impact it would have on the heritage of the property. Put simply, it would cause too much internal damage.
16. In August, Miss D complained about the contradiction between what the officer said in February with what the officer said in July. She also noted a few houses did not share a pipe despite the Council’s claim it was an original design concept.
17. The officer replied saying the difference between the two statements was due to a site visit taking place. The February statement was given without the benefit of a site visit. It was given only as guidance for solutions to minimise harm to a heritage asset or where there was any conflict with the need for consent. Alterations affecting the fabric or significance of the building always need Listed Building Consent.
18. The officer explained the July statement was given after visiting the neighbour’s property. Having had the benefit of looking at the inside of the property, and what work was needed to re-direct the waste pipe, the officer concluded additional boxing-in to conceal the pipes would have an undesirable impact on the character of the house which the Council would most likely refuse. The officer gave examples of other properties sharing a pipe.
19. I make the following findings on this complaint:
1. The officer’s response given in February was without the benefit of an internal inspection. The officer responded to a query Miss D raised. In these circumstances, it was not realistic to expect the officer to have carried out an internal inspection of the neighbouring property before responding.
2. The officer’s response could have explained he had not had the benefit of viewing the inside of the property to consider any internal works to assess whether they required Listed Building Consent or the likelihood of the Council granting consent. It could have warned the neighbour would need to formally ask the Council about whether the works needed consent. A visiting officer would then look at the impact of the proposed works. Whether or not Listed Building Consent was granted depended on an assessment and the Council may or may not give such consent. The impression this email gave to Miss D was an alternative existed to the current arrangement. The failure to fully explain the position in the email amounts to fault.
3. I am not satisfied this failing caused Miss D a significant injustice. This is because: she also lived in a listed building, in a conservation area, within a World Heritage Site and it is reasonable to assume she had some awareness of what an owner could and could not do with their property; the Council clarified the position about 5 months later, and during this period, the information was of little benefit to Miss D because it was not one she could act on; she had no control over what the neighbour might want or agree to do in terms of the waste pipe; the evidence shows a pipe connected to the hopper many years before Miss D bought her property; if Miss D wanted to prevent the neighbour from using the hopper, it would have been wise to have obtained legal advice first; Miss D disconnected the pipe months before receiving this email; Miss D and the neighbour most likely had a legal relationship about the connection which could not be overruled and interfered with by acting on a statement in a Council email.
4. When the officer responded to Miss D in July, this was with the benefit of an internal inspection. It was only at this point the officer became aware of the scope of the works the re-direction would involve and the impact on the fabric of the neighbour’s building itself. The officer visited the neighbouring property when asked to do so by the neighbour.

Complaint b): Environmental health procedures

20. In October 2017, the environmental health team received a report from Miss D’s neighbour. This was about her cutting and bending the waste pipes, so water now discharged into her yard. The neighbour told the officer Miss D had done it and would not allow their re-connection. An officer investigated and found the pipes disconnected.
21. The following month, the officer wrote to Miss D. This said she and her neighbour had joint responsibility for the maintenance of the downpipe and hopper. The fact they were on Miss D’s land did not affect the neighbour’s right to discharge waste water in to it. This was because of an easement. It warned if waste water discharged and gathered into the open yard, the Council had to take enforcement action against the neighbour by serving a notice under section 59 of the Building Act 1984 if satisfied its provisions were met. This would require the owner to make satisfactory provision for drainage.
22. The email also warned if the neighbour tried to comply with the notice by re-connecting the pipes to the hopper, and was prevented from doing so, the Council could take enforcement action against Miss D for obstruction. It explained the neighbour looked at other options to re-direct the pipes, but they were not viable. It asked her to allow the neighbour to re-connect the waste pipes.
23. Miss D objected to this letter saying it was inaccurate and only added to the problem, resolving nothing.
24. I make the following findings on this complaint:
1. Who has responsibility for the maintenance and repair of the hopper and downpipe is a legal issue and one for the courts to decide if disputed.
2. Whether the neighbour has a legal right to connect to the hopper and downpipe is also for the courts to determine if both parties are in dispute. The dispute between Miss D and her neighbour is a private civil dispute. It is not within the Ombudsman’s, or the Council’s, role to determine.
3. The Council, as it accepted during the complaints process, wrongly said the responsibility for the maintenance and repair of the hopper and downpipe was a joint one Miss D shared with her neighbour. It later changed this to a ‘moral’ responsibility for sharing this cost. It accepted, as it was attached to her property, the responsibility was Miss D’s alone.
4. I consider the Council’s initial statement about joint responsibility strayed into determining legal responsibilities and liabilities. The statement also said Miss D’s neighbour had the legal right to connect her pipes to the hopper. This was because of an easement. As the officer had not taken legal advice about this situation, the officer should have explained these statements were not conclusive or definitive about the legal rights and relationship between Miss D and the Council. The failure to do so was fault.
5. It would have been good practice for the statement to have pointed out she needed to take her own legal advice about it. It could also have gone on to warn Miss D that if the Council pursued enforcement action against her, she could raise arguments about legal rights and responsibilities in her defence at court.
6. I am not satisfied this failure caused her a significant injustice. This is because Miss D could, and indeed did, seek legal advice about it. I consider it likely she would have had to get legal advice generally about the dispute between her and her neighbour about this connection.
7. The letter warned Miss D the Council, ‘may look to take enforcement action against you for obstruction’ if she prevented the neighbour from re-connecting the pipes. This is because the neighbour would have a defence to any notice the Council served on her if Miss D frustrated her attempts. The letter explained the neighbour was unlikely to get consent for a new downpipe. Nor was the neighbour likely to get consent to re-direct the pipes internally.
8. I am not satisfied this warning amounts to fault. The Council had a duty to investigate what might have amounted to a statutory nuisance and warn Miss D of the consequences of her actions.
9. The Council’s enforcement policy explains the purpose of enforcement is to ensure preventative or remedial action is taken to protect health and the environment. Environmental health seeks to ensure voluntary compliance with legal requirements where possible. Officers have a range of options from taking no action, informal action, through to prosecution. The evidence shows the Council took informal action against Miss D. It took this action to protect public health. This approach was not fault.
10. Miss D’s decision to disconnect the pipe was not the fault of the Council. She chose to do it and is responsible for any legal consequences flowing from her decision, including the need to pay for legal advice. Nor am I satisfied the Council’s actions significantly impacted on the relationship between Miss D and her neighbour. This is because it is clear Miss D was unhappy with the connection for many years and sought its removal.

Complaint c): Complaint procedure

25. Miss D is unhappy with the way the Council dealt with her complaint under its complaints procedure.
26. The Council’s complaints procedure consists of:

• Stage 1: The Council will send its response within 20 working days: and
• Stage 2: The Council will send its response within 65 working days. The complaints unit assesses whether there are enough grounds for a formal investigation.

27. The Council dealt with her environmental health complaint in the following way:

• 27 November 2017: Miss D complained to the Council about a letter she received.
• 6 December: The Council told Miss D that due to availability of officers, it was hoping to complete the investigation during the week commencing 18 December.
• 18 December: Miss D asked for complaint to go to stage 2.
• 22 December: The Council sent its stage 1 response. This partially upheld her complaint that the email in February could have been clearer. This was because the Council accepted the hopper and downpipe were attached to her property which made her legally responsible for their upkeep. The Council noted that ‘morally’ the cost of repair should be shared.
• 9 January 2018: A copy of the complaints procedure was sent to her which she requested.

28. I am satisfied the Council properly dealt with Miss D’s complaint at stage 1, against the environmental health department. This is because it replied within its stated timescale.
29. The Council dealt with her planning complaint in the following way:

• 19 September 2018: Miss D made her initial complaint.
• 17 October: The Council emailed her to say it would respond by 26 October.
• 29 October: The stage 1 response was sent. This found the advice about drainage was appropriate but, accepted some delays in responding to more recent correspondence.
• 30 October: Miss D asked for it to go to stage 2.
• 4 December: The Council replied saying it would not investigate at stage 2 because there were not enough grounds to do so. The Council dealt with her request as one for clarification and questions.
• 14 December: A stage 2 acknowledgement was sent.
• 5 April 2019: A stage 2 allocation letter was sent to Miss D explaining the delay was due to workloads.
• 7 May: The complaint unit sent a draft stage 2 response to the planning team for comments. The team provided its response 2 weeks later.
• 17 June: The Council sent the stage 2 response to Miss D.

30. I am satisfied the Council properly dealt with Miss D’s complaint at stage 1 against the planning department. This is because it replied within its stated timescale.
31. I am not satisfied the Council properly dealt with Miss D’s complaint against the planning department at stage 2. Even considering the Christmas holiday period, her request for it to go to stage 2 should have been sent by 24 January 2019. Instead, the Council sent it in June, 5 months later. Part of the delay was due to its initial decision, made 2 months after receiving her request, that there were no grounds to take it to stage 2 which was reversed 10 days later after further discussion with Miss D and her councillor. These failures amount to fault. The injustice to Miss D was uncertainty and frustration about what was happening.

Agreed action

32. I considered our guidance on remedies.
33. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Miss D a written apology for the delay she experienced with it dealing with her complaint;
2. Review why the failures in the complaints process happened at stage 2 and take action to ensure they are not repeated on future cases; and
3. Pay Miss D £100 for the time and trouble she was put pursuing this complaint and for the frustration and uncertainty she experienced as a result.

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Final decision

34. On Miss D’s complaint against the Council, the Ombudsman found:

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Investigator's decision on behalf of the Ombudsman