Summary: the Council failed to take action to deal with flooding of Mr C’s road and failed to give him any information about what action the Council was considering. An apology and payment to Mr C, assessment of the case and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council:
• failed to act to deal with flooding of his road; and
• failed to give him any details about action the Council was considering or had taken.
2. Mr C says as a result of the Council’s inaction he is left not knowing whether it has taken his concerns seriously and he has had to go to time and trouble to pursue his complaint.

Back to top

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. 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

7. The Council’s Land Drainage Enforcement Policy (the policy) refers to section 25 of the Land Drainage Act 1991 which requires that appropriate maintenance is carried out by riparian owners on ordinary watercourses. The policy makes clear failure of riparian owners to comply with section 25 can result in enforcement action if it is considered a lack of maintenance or alteration to a watercourse poses a flood risk. The Council’s power to act is at its discretion and is not a duty.
8. The policy says the Council believes prevention is better than cure and its general approach will be to educate landowners, developers, farmers and businesses to enable compliance. It says the desired outcome is always to ensure compliance through discussions and negotiations. The policy says where this is not possible due to a lack of willingness to work with the Council enforcement action will begin to ensure lives and properties are not put at risk.
9. The policy says the Council takes a risk-based approach to managing flooding. It says it has set an enforcement threshold which is designed to ensure action is taken where someone’s action or inaction causes a risk of flooding which will disrupt other people. It says the Council will take action where it is suspected that an offence has occurred or is about to occur. It says action may range from providing advice and guidance, serving notices, prosecution for failure to comply with notices or any combination of actions which achieve the desired outcome.
10. The policy says the Council will normally take enforcement action where it considers that an ordinary watercourse is in such a condition that the proper flow of water is impeded and that impediment is causing harm to a receptor. The policy says an ordinary watercourse includes all rivers and streams and all ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows. A receptor includes a habitable property and highway.
11. The policy says all enforcement action will be proportionate to the risks posed to people and the environment and also to the seriousness of the breach and its impact on the local community.
12. The Council has also produced an Ordinary Watercourse Enforcement Protocol (the protocol). This sets out more detailed guidance on action the Council will take, and the timescales for action, following a report of the nuisance.
13. The protocol says if, after assessing the site, officers are of the view the condition of the ordinary watercourse is impacting on the flow of water the officer will ascertain the identity of the relevant person to whom he may consider issuing a notice.
14. The protocol says once ownership has been established the officer will write to the relevant person to explain the breach and indicate the nature of the works to be carried out, allowing a reasonable timescale which will depend on the circumstances of the case. A meeting will also be offered and if a meeting takes place the Council will confirm any action plan and timescales in writing within 7 days.
15. The protocol says if the work is not completed within the timescales specified in the letter or subsequently agreed with the Council the officer should seek authorisation to issue an enforcement notice.

What happened

16. Mr C reported flooding to his road in January 2021. The Council carried out a site inspection on 12 February and identified that ditches were blocked. The Council also identified that an adjacent landowner was responsible for those ditches. The Council intended to send a letter to the adjacent landowner. There is no evidence the Council did that.
17. The Council wrote to Mr C to say it had inspected and identified a problem with blocked ditches. The Council explained an adjacent landowner was responsible for those ditches. The Council provided some general information about enforcement action and the types of options open to it and said it could not provide any further updates.
18. Mr C’s solicitor wrote to the Council in June 2021. Mr C’s solicitor raised concerns about the Council’s failure to provide details of what action it intended to take. The Council told Mr C’s solicitor it had referred the case to highways enforcement for investigation and said it could not provide any timescales for action as that was dependent on other priorities.
19. At the time of the events complained of the Council did not have sufficient resources in its enforcement team. The Council has recently appointed a flood enforcement caseworker and increased the members of the enforcement team. The flood enforcement caseworker is now allocated to this case and carried out a site visit in May 2022. At that point though there was no evidence of flooding. The Council intends to arrange a site visit with Mr C to discuss where the flooding issue occurs and the extent of the flooding. The Council then believes it will be able to take any necessary enforcement action.

Analysis

20. Mr C says the Council failed to act when he reported flooding in his road and failed to give him any details about the action the Council was considering. The evidence I have seen satisfies me Mr C first raised concerns with the Council about flooding of his road in January 2021. I am satisfied the Council acted promptly on that report by visiting the site. However, I am concerned that despite identifying the need to write to the landowner about blocked ditches the Council failed to do that and even at May 2022, was yet to contact the landowner. That is also contrary to the Council’s protocol, referred to in paragraphs 12-14. Failure to follow up with a letter to the landowner is fault.
21. I am also concerned about the vague responses the Council has given to Mr C and his solicitor about the action the Council intended to take. I appreciate the Council cannot share confidential information relating to third parties with Mr C. However, I would have expected the Council to give Mr C an idea about the priority given to his case and a broad outline of the timescales involved. Failure to do that is fault.
22. I recognise at the time the Council was considering this case it had shortages in its enforcement team. I appreciate this meant the Council could not deal with cases as quickly as it would have liked. However, this meant it was even more important for the Council to have managed Mr C’s expectations by sharing that information with him. The Council did not do that and this is also fault.
23. I understand the difficulties the Council experienced at the time. Nevertheless, the Council had identified the need to contact the landowner responsible for the ditches and failed to do so. In the absence of any specific officer to deal with flood enforcement cases I would also have expected the Council to triage any cases reported to it to identify those which required urgent action. To a large extent that has now been remedied by the appointment of a flood enforcement caseworker. However, the extended delay has led to Mr C having to go to time and trouble to pursue his complaint and he is now left with some uncertainty about whether the situation could have been resolved had the Council followed through on its intention to write to the landowner in 2021.
24. As remedy for that I recommended the Council apologise to Mr C and pay him £100. I also recommended the Council arrange a meeting on site with Mr C to discuss where the flooding occurs and then make a decision about how to proceed and communicate that decision to Mr C. I recommended the Council ensure training planned for officers in the enforcement team covers the need to keep those who have complained up-to-date with what is happening with their complaint, subject to restrictions on what the Council can share. The Council has agreed to my recommendations.

Back to top

Agreed action

25. Within one month of my decision the Council should:
• apologise to Mr C;
• pay Mr C £100; and
• arrange a meeting on site with Mr C to discuss the extent of the flooding and where it occurs. Following that meeting the Council should decide how to proceed and communicate that decision, without sharing confidential information, with Mr C.
26. The Council’s planned training for enforcement officers should include a reminder of the need to keep those who have reported issues up-to-date with what is happening and to explain target timescales for action.

Back to top

Final decision

27. I have completed my investigation and uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman