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.

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. Other Environment Agency functions can be investigated by the Parliamentary and Health Service Ombudsman (Helpline 0345 015 4033). This includes complaints about the Environment Agency’s actions as a statutory planning consultee in relation to flood defence matters.
  • 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 - a link is provided below.
  • 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 Ministry of Housing, 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. Water companies keep up-to-date maps of sewers and water mains for which they are responsible. Most but not all pipes within an individual property boundary are the property owner’s responsibility to maintain. Complaints against water companies should be made to the company first and then to the Consumer Council for Water (0300 034 2222).
  • Highways England. Manages the strategic road network in England comprising motorways and some A roads.

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.

Examples of complaints we have considered

Mr X complained the Environment Agency failed to classify a water structure as a dam and delayed undertaking works to prevent flooding. Mr X said his home flooded on a frequent basis causing financial loss and distress. We decided there was no fault in the process leading to the decision not to classify the structure as a dam which was a matter of professional judgement. Although the works took longer than originally anticipated this was also not due to fault by the Environment Agency.
Mr X complained the council fail to clear a set of drains near his home. He stated that when it rained the blocked drains cause the pavements and roads to flood, making them difficult to use. We found the council was at fault as it did not properly address Mr X's concerns about the blocked drains. This fault did not cause him any significant injustice but it may have resulted in a hazard on a pavement near his home. To remedy this injustice, the council agreed to clean the drains and write to Mr X to confirm the work had been completed.
Miss X complained the council failed to adequately respond to her concerns about ongoing flood protection after a culvert collapsed and flooded her garden in 2017. We found the council was at fault as it failed to respond to all of Miss X's concerns which caused her frustration and uncertainty. It was also at fault for the delay and handling of Miss X's complaint which caused her further frustration and uncertainty. The council agreed to pay Miss X £150 in recognition of these faults.

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.

October 2019