Summary: The Ombudsman found no fault on Miss F’s complaint against the Council that it failed both to act on her reports about surface flooding near her home and keep her informed about what it did in response. The Council provided records of cleaning works done since it adopted the road. It is looking at other long-term options, one of which includes working with the local water board. These will take time to progress because of the financial implications and the need for proper planning and design.

The complaint

1. Miss F complains the Council failed to:
1. act on her reports of surface flooding on her street; and
2. keep her informed about what action, if any, it took in response.
2. As a result, she is frustrated with its lack of action, lack of feedback, and is concerned about the health and safety risks posed to residents and properties.

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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)
5. 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)

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Highways Act 1980

6. The highways authority is responsible for maintaining a highway that is maintainable at the public expense. (section 41)
7. The highways authority, for the purpose of draining or preventing surface water from flowing on to the highway has the power to a) construct or lay, in the highway or land adjoining near to it, such drains as they consider necessary; and b) scour, cleanse, and keep open all drains situated in the highway or land adjoining or laying near it. (section 100)

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How I considered this complaint

8. I considered all the information Miss F sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my initial draft decision to Miss F and the Council. I considered their responses and the new evidence the Council sent. I sent Miss F and the Council my revised draft decision and took account of Miss F’s response.

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What I found

9. Miss F and her family have lived in their home since 2010. The house was built about 4 years earlier. The property first flooded in 2013 and the following year it occurred on 4 separate occasions. The last flood took place in July 2018. The flooding affected the garden and garage but did not enter the house.
10. Miss F argues the problem is with the drainage of the adjoining road. Water pools there after heavy rain which then backs up and floods her property. Until 2016, the road was unadopted. While an unadopted road may have public rights of way, it does not belong to the local authority. This means the Council, as highways authority, does not maintain them. Responsibility for the road rests with the residents and, or, the property owners. A local authority can adopt a road if it is completed to minimum statutory standards.
11. While Miss F accepts the flooding caused little damage to the house or garden, it causes her and her family a tremendous amount of stress, particularly when it rains heavily.
12. In response to my enquiries, and my initial draft decision, the Council explained:

• Under its Highway Infrastructure Asset Management Plan, gullies and kerb outlets are cleared once each year on a cyclic basis (paragraph 4.4.3.1);
• 2011: It placed the drainage system on a 3-year maintenance period which expired in July 2013. The Council introduced this because of the variability of soil conditions on site as the development is drained by soakaways;
• 2014: After further flooding, the developer’s contractor met officers on site. Cleaning and remedial works were done by the end of the year;
• 2015: The Council told Miss F it asked for a drainage report to assess the system’s condition, compliance, and adequacy as it looked at adopting the road;
• 2016: In August, the Council adopted the road. Just before doing so, it assessed the soakaways. This concluded their performance might be compromised because they were close to one another. In addition, there were inconsistencies between ground investigation results used to calculate infiltration rates and actual performance. Put simply, they were not as efficient as the developer suggested. While marginal, the system met the standards and technical advice at the time and the developer also met the Council’s requirement about cleaning the system;
• 2018: When it received Miss F’s complaint, the problem was raised at its Joint Flood Risk & Drainage Management Group (the Group). The Group is a multi-agency meeting which tries to reach solutions to local drainage issues. They work in partnership to address problems. The Council and the water board worked together to try and find feasible options for managing excess surface water;
• The Council arranged for more frequent cleaning than usual. Usually highway gullies are cleansed once a year, but this excludes the receiving drainage systems which are done as needed. It arranged for the regular cleaning of the soakaways on a precautionary basis. The Council accepts this alone is unlikely to prevent flooding;
• The Council sent records I had not seen when I sent my initial draft decision. This provided evidence of regular cleaning and other works carried out on gullies and inspection chambers. They show six gullies were cleaned on 5 occasions from 2016 to 2019. Five other gullies were cleaned 3 times during the same period, once each year;
• The inspection chambers were cleaned on average once a year, although there were instances of a couple being cleaned twice in 2017 and then not again until 2019. The records for the later visits did not show any problems with them such as blockages, for example. The Council accepts 3 inspection chambers were missed until 2019. This was because they appear to be in a front garden, and another is in open space that does not look like the highway. When inspected, there were no blockages. The records show the recorded silt levels at each visit was at, or below, 50%. The Council explained there was no point carrying out more frequent cleaning as the recorded silt levels were in the acceptable region of 25-50% and water still passes through them when they are at 100%;
• Other records confirm in July 2018, 26 gullies were cleaned along with the soakaways and manholes. Records state these were full of water and the visiting crew took 2 barrels of water out of the system, but the level did not drop. It queried whether a larger tanker was needed to empty the system. The location map for this visit showed the positions of the soakaways to be cleaned and said, ‘Please pay particular attention to the soakaways as they have not been cleaned for some time and we need them at full capacity’;
• In response to my initial draft decision, the Council said while it would consider comments from its gully operators, it does not have to act on them if the evidence does not support what is said. Tankers are used that are suitable for the operation and if a larger tanker is needed for more powerful jetting or emptying, the team can get specialist teams to do this. It is subject to a budget and must, therefore, be prioritised but priority goes to internal flooding and issues of highway safety, neither of which applies here;
• The water board confirmed in principle it would accept low volumes of water into its surface water sewer. The Council is looking to carry out further work to establish if there is a technically viable scheme which could work. It confirmed the ‘opportunity has not arisen’ since June to further develop this project. In response to my initial draft decision, the Council confirmed it is exploring the feasibility of the project;
• The Council is looking at other options, such as local storage, for example, which do not rely on the water board. It says no single option is likely to provide the required level of protection or guarantee success. In response to my initial draft decision, the Council explained in the life cycle of a project, it is usual to first establish the strategic need, draw up a short list of options, which would include doing nothing, before carrying out a technical, economic, and budgetary assessment of the preferred option; and
• It will try to find the best protection level because problems are occurring more often than the design capacity suggests.

13. Miss F experienced further problems recently. She previously told the Council flooding only occurred during thunderstorms but now it occurred during brief, but heavy showers in July, August, and September.
14. She provided a copy of an email from the Council she received in August. This confirmed the problem was not with the gullies, which are regularly cleaned, but with the soakaways they connect to downstream. The email explained the Council was looking at a permanent engineering solution to improve this problem. The scale of the work means a full investigation, design, along with consultation with the water board, is needed. The Council apologised but explained there is no short-term solution. Any solution to the problem is going to take time to design and build. It concluded by saying investigations have started which it will progress as quickly as possible to find a long-term permanent solution.
15. Miss F sent a complaint to the Council about flooding in May 2018 and received a response in July. She sent further complaints to the Council in August in response to its stage 2 response the month following the last flood.

Analysis

16. The Council is responsible for maintaining highways in its borough at public expense. As a highway authority, it is responsible for providing and managing highway drainage. This includes drains running beneath the roads. Highway drainage systems are designed to manage rainwater landing on the highway both to prevent flooding and protect the road. These can include soakaways, for example.
17. I make the following findings on this complaint:
1. I am satisfied from the records the Council is cleaning the gullies and inspection chambers regularly. Although it missed 3 inspection chambers, which were not cleaned for 3 years, they were found clear when inspected.
2. The problem, as confirmed in a Council email to Miss F, does not appear to be with the gullies and inspection chambers, but rather with the soakaways which are not dealing with the capacity of water in the system. While I am satisfied the Council is acting to keep the gullies and chambers clean, the fundamental problem is with the capacity of the soakaways. No matter how clean the gullies, this problem will remain.
3. The Council is aware of the need to solve this problem with the soakaways capacity. It acknowledged the solution to increase the system’s capacity will be costly and take time.
4. The Council is working with the water board to look at the feasibility of running some excess water into its system.
5. The Council is also looking at other options which do not involve the water board. As noted, these are going to take time to provide as they involve not only a financial commitment, but requires careful planning, and design. Unfortunately, any long-term solution is not going to happen quickly.
6. On balance, I am satisfied the Council is actively looking at different solutions to resolve and manage the long-term problem with the soakaways. I am also satisfied the Council has told Miss F what it is doing, which I would expect to continue.

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Final decision

18. The Ombudsman found no fault on Miss F’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman