Flooding and land drainage issues

This fact sheet is aimed primarily at people who believe action by the Environment Agency or the council has put their property at risk of flooding and may be considering making a complaint to the Ombudsman.

My property has been affected by flooding, or is at serious risk of being affected by flooding, and I think this is the result of action involving the council or the Environment Agency. Can the Ombudsman help me?

Yes, we can often deal with such complaints – although flooding, and what causes it, is a complex matter which involves many different agencies. So we cannot investigate all cases.

The Environment Agency, councils and Internal Drainage Boards (IDBs) are bodies with the power to carry out land drainage or flood protection works. Their powers are "permissive", not duties.

Flooding or the risk of flooding can come from the sea and two types of watercourses:

  • Main rivers. The Environment Agency's powers to carry out flood defence works apply to main rivers only. Main rivers are designated by the Department of Environment, Food and Rural Affairs (Defra).
  • Ordinary watercourses. These are all other watercourses and councils or IDBs have the power to carry out flood defence and drainage works on them.

What can the Ombudsman investigate?

We can investigate the actions of:

  • The Environment Agency and regional flood defence committees,only where the complaint is about flood defence and land drainage matters. The Ombudsman cannot investigate action by local flood defence committees unless the local committee is acting under delegated authority from the regional committee.
  • Internal drainage boards (IDBs). These are independent bodies responsible for land drainage in areas of special drainage need. Information on areas covered by IDBs can be obtained from the Association of Drainage Authorities.
  • Local councils. These have similar powers to IDBs relating to flood prevention works on ordinary watercourses that are not within IDB areas. They are also responsible for local land use planning and need to assess whether proposals for new developments may result in flooding or lead to a significantly increased flood risk. Unitary and county councils are lead local flood authorities. They must develop a local flood risk management strategy that sets out the local organisations with responsibility for flood risk in their area and produce a plan for managing flood risk. The council may also be the highway authority and as such will have responsibility for the drainage of roads and should ensure that drains, including gullies, are maintained.

We cannot investigate the actions of:

  • Landowners. They have the main responsibility for safeguarding their land and nearby property against flooding and blocked drains. We could only investigate a complaint like this if the landowner was the local council.
  • The Department for Environment, Food and Rural Affairs (Defra). This has overall responsibility for land drainage and flood defence, and the Department for Communities and Local Government is responsible for national planning policy and guidance on flood risk.
  • Agricultural Land Tribunals (ALTs). Among other things, these tribunals consider issues referred to them under the Land Drainage Act 1991 about certain drainage disputes between neighbours. They deal with applications for a direction to cleanse ditches or carry out drainage work on neighbouring land. The Environment Agency is responsible for enforcement duties under the jurisdiction of ALTs.
  • Water companies. On 1 October 2011, private sewers and lateral drains were automatically transferred to the water and sewerage companies. This means property owners are no longer responsible for private sewers that are shared with another property owner or the section of drainpipe outside the property boundary. In most other cases the owner/occupiers are responsible for maintaining and clearing a private drain/sewer.
  • The Highways Agency. It has responsibility for drainage from trunk roads.
  • The Environment Agency where the complaint is not about flood defence. Other Environment Agency functions can be investigated by the Parliamentary and Health Service Ombudsman. This includes complaints about the Environment Agency's actions as a statutory planning consultee in relation to flood defence matters.

Unresolved complaints about Government departments or other functions of the Environment Agency need to be made to the Parliamentary Ombudsman. Complaints against water companies should be made to the company first and then to OFWAT (0121 625 1300) or the Consumer Council for Water (0845 039 2837).

We have to consider:

  • Government guidance emphasises that landowners have the primary responsibility for flood prevention
  • all powers relating to flooding and land drainage are permissive; so the various bodies involved do not have a duty to take action. They have to prioritise work based on need and take action using public funds when they consider it is justified to do so. If the organisation concerned has assessed the need for flood defence work, followed the proper procedures and relevant guidance in a timely way and then reached a decision, we are unlikely to uphold a complaint, and
  • it is often difficult to conclude with certainty what caused a particular incident of flooding.

How do I complain?

You should normally complain to the council or other agency involved first and ask it to put the matter through its complaints procedure. Councils and other agencies often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.

Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.

But we do not expect you to go through more than one complaints process. So if the matter you are complaining about involves more than one authority – for example both the Environment Agency and a council – you can complain to us straight away. Please explain the circumstances when you contact us.

You should normally make your complaint to us within 12 months of realising that the council has done something wrong.

For more information on how to complain, visit our contact page or complete an online complaint form.

If you can consider my complaint what will the Ombudsman look for?

We consider whether the council or other body has done something wrong in the way it dealt with a matter about flooding which has caused you problems. Some of the faults we might find are that the council or other body:

  • failed to consult the Environment Agency when deciding on a major planning application
  • failed to consider comments made by the Environment Agency, or the relevant IDB, when deciding on a planning application for development
  • failed to consider the guidance provided by the Government
  • failed to have effective liaison with the different bodies involved in drainage and flooding matters, or
  • failed to consider its powers to deal with flooding and land drainage properly.

What happens if the Ombudsman finds that the council or other body was at fault?

Where it has been at fault, and you have suffered as a result, we can recommend that the body involved takes action to put the matter right. Depending on what the complaint is about, we may ask it to:

  • decide if and what action is warranted and take that action within a reasonable time
  • make a payment to recognise the harm caused, or
  • improve procedures so the same problems do not occur again.

An example of a complaint we have considered

Mrs O complained that her council failed to take action to ensure her neighbour completed remedial work to a defective storm drain. The council’s drainage engineer inspected the site and found that Mrs O’s property was damp although he could not say it was caused by defective ground water drainage. The council’s policy was that private owners should normally exhaust all possible steps to resolve the matter, including taking court action or private engineering advice, before the council exercised its power to do work. The council contacted the neighbour to make him aware of his responsibilities to ensure adequate drainage but did not carry out any works to the storm drain. The Ombudsman decided the council was not at fault. It had no duty to carry out the works but did consider its powers to do so in accordance with the law and its own policy.

Other sources of information

The Association of Drainage Authorities - www.ada.org.uk This site gives a list of IDBs and provides links to the individual IDB's website, which include details of its complaints procedure.

Environment Agency - www.gov.uk/government/organisations/environment-agency You can view the "Environment Agency: Living on the Edge - an updated guide to the rights and responsibilities of riverside owners" as well as access the flood maps that show wehther your local watercourse is a main river or not, and information on flood risk in a particular area.

Government guidance - The Government published the National Planning Policy Framework in March 2012. This gives guidance on considering flood risk during the planning process - see www.planningguidance.communities.gov.uk/. Decisions before this and for a transitional period may still take account of the old guidance (Planning Policy Statement 25: Development and Flood Risk). You can find this on the Gov.uk website: www.gov.uk/government/publications/development-and-flood-risk-practice-guide-planning-policy-statement-25 .

The Department for Environment and Rural Affairs - for information on flooding www.gov.uk/government/policies/reducing-the-threats-of-flooding-and-coastal-change

Your local council’s website may provide some information about local flooding and drainage responsibilities.

Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.

The Local Government and Social Care Ombudsman provides a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result the Ombudsman aims to get it put right by recommending a suitable remedy.

April 2016