The Ombudsman's final decision
Summary: Mrs C said the Council was at fault for refusing to take action against her neighbour who had installed a culvert without consent and for relying on a flawed consultant’s report in support of its position. The Council was not at fault. It took a reasoned decision not to take enforcement action against her neighbour. The report was thorough and prepared by expert consultants. The Council was entitled to rely on expert advice.
The complaint
The complainant, Mrs C, says the Council was at fault for: A failure to take enforcement action after her neighbour altered a watercourse without consent, and Commissioned and relied on a report which contained errors and omitted important considerations.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with an organisation’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)
How I considered this complaint
I spoke to Mrs C. I wrote an enquiry letter to the Council. I considered the evidence I had gathered and applied any relevant law and guidance.
Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should happen Flood and Water Management Act 1991 The Flood and Water Management Act 2010 (‘FWMA’) aims to reduce the flood risk associated with extreme weather. It gives the Environment Agency, (‘EA’) powers to provide a strategic overview of flood and coastal erosion risk.
FWMA created Lead Local Flood Authorities (LLFAs) which, in England are higher tier authorities such as the Council. The FWMA gives LLFAs powers and responsibility for preparing and putting in place strategies for managing flood risk from groundwater, surface water and ordinary watercourses in their areas.
The FWMA requires councils and the EA to assess risk in terms of both the probability of a flooding event and the seriousness of its consequences. They should then create a flood risk assessment and policies for alleviating risk.
LLFAs should assess the risk both according to the likelihood that any area will suffer flooding in any year and the number of people likely to be affected if flooding occurs. They should then create strategies and plans accordingly.
Where an LLFA becomes aware of a flood in its area it must investigate, if it thinks it necessary.
Riparian ownership Under common law, and under the Land Drainage Act 1991, (“the Act”) a person who owns land or property next to a river or watercourse is the ‘riparian owner’ and is responsible for the maintenance of the bank and bed of their section of watercourse and for removing any obstruction to flow.
Land Drainage Act 1991 This Act says that those owning the land around a water course have ‘riparian responsibility’ for maintaining it. The Act gives councils powers of enforcement to require a riparian owner to carry out maintenance work on the watercourse. It can also carry out works itself and charge the riparian owner for them.
The Act also provides that riparian owners can apply to a LLFA for consent for works on the watercourse such as the installation of culverts. There is no power to provide retrospective planning consent under this Act.
CCC Flood Risk Enforcement Policy The Council published a Flood risk Enforcement Policy in 2013. It says the Council will operate a “risk-based approach” in managing flooding in its area. It says the approach “ensures that our response to any contravention of the legislation will be proportional to the flood risk issues faced at the location”.
The policy says the Council will prefer discussion and negotiation to legal action.
What happened Mrs C lives in a rural part of the Council’s area which has been assessed as being at a low to moderate risk of flooding. She says there have been several severe flooding events since she bought her house but the floodwater never came into her garden, outbuildings or house.
Mrs C says that in 2018, one of her neighbours filled in a drainage ditch which ran along the borders of her property and replaced it with a drainage pipe accessible through a culvert.
In the winter of 2020, the UK was hit by wet weather. The Council’s area was affected. The Council says that, between October and December 2020 rainfall was 155% of the long-term average amount causing high saturation of the soil.
On 20 December 2020, the Council says that 28mm of rain fell in 12 hours which was over half of the normal amount for the whole of December. There was extensive flooding. The Council says there were 795 flood alerts in its area and 295 houses were inundated.
Mrs C says the flood waters at her property were worse than she had ever experienced. She says that, while in previous years, floodwaters had not entered her garden, on this occasion, they did so. While they did not enter her house, she says this was because she and her husband had prevented it by diverting the waters through drainage channels.
Mrs C believes that the reason the waters flooded her property is that her neighbour filled in a drainage ditch and installed the culvert which, she says, reduced the drainage capacity and increased the risk to her property.
In October 2021, Mrs C contacted the Council and voiced her concerns about the culvert. Council officers visited the site in December 2021. The Council found that the neighbour had built a culvert without planning consent. They had not, until then, been aware of this.
Planning consent for culverts cannot be granted retrospectively. Therefore, the Council could not do so. However, officers took the view that the culvert did not increase the risk of flooding to Mrs C’s property and that, therefore, enforcement action requiring the neighbour to restore the channel to its previous state was not proportionate or necessary.
Mrs C was unhappy with this decision and complained to her MP who contacted the Council on her behalf. She also complained through the Council’s corporate complaints process.
The Council commissioned an independent consultant to carry out a survey on the culvert. The consultant reached the same conclusion as the Council: that the culvert did not increase the risk to Mrs C’s property. It found that the reason for the flooding of Mrs C’s property was the high levels of rain throughout the winter of 2020 which meant the ground was saturated when the extreme rainfall of December 2020 fell.
Mrs C continued to complain through the Council’s complaints procedure raising concerns about the validity of the consultants’ report. The Council did not uphold her complaint.
Mrs C came to the Ombudsman.
Was there fault causing injustice?
Mrs C believes the installation of the culvert has increased the risk to her property. Expert Council officers and an independent consultant say it has not.
Officers responded to Mrs C’s concerns about the new culvert by visiting the site. They inspected the work and found that it was development which would have required planning consent under the Act. However, in their professional opinion, the culvert was acceptable in design and did not result in an increased flood risk.
Under the Act, it is not possible to apply for or grant retrospective planning consent. Therefore, the culvert still does not have planning consent. Mrs C says the Council should, therefore, use its powers to make her neighbour remove the culvert and require the restoration of the channel.
However, the Council does not believe this would be necessary or proportionate. This is a decision taken by expert Council officers in possession of the relevant facts. It is in line with the Council’s policy on enforcement.
While the Ombudsman will challenge flawed policies and practices, we do not second-guess professional decisions made without fault and I have not found evidence there is fault in the way this decision was taken.
Following Mrs C’s stage one complaint, the Council commissioned an inspection and survey by an independent consultant. This too found that the culvert did not increase the risk of flooding. The Council has relied on this report to support its previous decision. Mrs C says it is wrong to do so because the report is riddled with fundamental errors.
I have put Mrs C’s criticisms of the report to the Council which has answered them. In short, it says the report is professional and accurate. It sets out that the report assessed the soil type, the weather, the lay of the land, the culvert and any other relevant factors and found that the culvert does not increase the risk to Mrs C’s property. It concluded that the flooding would have happened if it had not been there. Given the focus and attention to detail within the report, I do not find the Council at fault for relying on it.
Mrs C is anxious that there is an increased risk of flooding to her property. However, the Council’s view is that this is not the case. I cannot find the Council at fault for reaching a professional decision with which Mrs C disagrees. Therefore, I do not uphold the complaint.
The Council has said officers have visited the site to remind Mrs C’s neighbours of their duty as riparian owners to maintain and service the culvert. The Council says officers will visit the site regularly to ensure it remains clear.
Final decision
I have found the Council is not at fault. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman