Summary: We found fault on Mr F’s complaint about the Council giving incorrect and misleading advice about his neighbour’s responsibility for flooding. The Council failed to confirm the outcome of the initial visit, explain its role, confirm what it was going to do and why, correct a claim he made following it, confirm it had done other visits, and failed to tell him it was closing the case and why. The agreed action remedies the injustice caused.

The complaint

1. Mr F complains about the Council giving incorrect and misleading advice about a neighbour’s responsibility for a blocked culvert/drain on his drive: as a result, this caused him unnecessary stress, frustration, wasted his time chasing the wrong neighbour to do necessary works, as well as putting him to a great deal of time and expense creating his own flood defence.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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The Law

4. Some councils have the power to act as the Lead Local Flood Authority (LLFA) for their area. Landowners have the primary responsibility for flood prevention. Councils’ powers (as LLFAs) are permissive, meaning a council has a power but, not a duty, to act. Councils need to prioritise works based on need, and act, using public funds, when they consider they are justified in doing so.
5. If the ‘proper flow’ of a watercourse is impeded, section 25 of the Land Drainage Act 1991 gives councils the power to serve a notice on a landowner requiring that they take action to resolve the problem.
6. An ‘ordinary watercourse’ is any river, stream, brook, ditch, drain, culvert, pipe, or any other passage through which water may flow which is not designated as a ‘main river’.
7. High Peak Borough Council is not a LLFA.

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How I considered this complaint

8. I considered all the information Mr F provided, including the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

9. Mr F has lived in his home for several decades but, about five years ago, began to experience problems with flooding from the fields behind his house. These fields are owned by Mr G. Water comes off the fields towards a catchpit (an empty chamber which prevents silt and debris building up and causing blockages). This is behind a small wall on Mr F’s land. From there, the water flows down to a culvert (a type of ‘ordinary watercourse’ and typically an underground structure which allows water to flow through it) about two metres away on his drive. The water then flows through another pipe beneath a neighbour’s garden wall.
10. Water began to back up in Mr F’s culvert and flood his land so in 2019, Mr F asked the Council for help. He wanted to know who was responsible for resolving the problem and mentioned a problem with a culvert backing up during heavy rain. An officer visited and noted the system drained the fields above where there was a catchpit at its edge which ran down to a chamber on Mr F’s drive. From there, it drained underneath a neighbour’s garden through a pipe.
11. As there was no flow during the visit, the officer noted in August 2019 he was, ‘unsure whether it could possibly be classed as a drain rather than a culvert’.
12. A screen shot of a record Mr F obtained from the Council stated, ‘no flow at time of visit so would be a drain not a culvert’. This note is undated although was sent in a series of screen shots that start in August 2019.
13. If this was a culvert, responsibility for ultimately taking enforcement action would be that of the LLFA where the blockage was known, and the riparian owner refused to carry out the duty. Responsibility for its maintenance would be that of the landowner for those parts on his land. If it was a drain, enforcement would be for the Council. The Council would try to get the owner to agree to voluntarily act before pursuing enforcement.
14. The Council said the flooding and its cause was never confirmed by the officer visiting.
15. The officer contacted Mr G, leaving messages about the blockage with the drain from the fields. The officer later spoke to him, and Mr G agreed to investigate and clear faults if any were found in his drainage system. The Council accepted this was the officer’s misplaced attempt to resolve the problem voluntarily and/or rule out the farmer’s drainage as being part of the problem.
16. In mid-December, Mr F emailed the Council and claimed the officer said the person who benefited from the drain was responsible for rectifying any problem with it. He pointed out this was Mr G. Mr F also pointed out he had spent a lot of money and time building defences to divert the water when it flooded.
17. The same month, the officer advised Mr F to contact the LLFA about the flooding.
18. In 2020, Mr F says the officer visited again to check the drain was running clear and wrongly assumed Mr G had done the works requested of him. The Council again pointed out the officer had never witnessed any flooding or its cause during his visits. The Council closed the case six months later.
19. There was no contact between Mr F and the Council between 2020 and his next report sent in November 2022. During this period, he sent letters to Mr G about ongoing issues and the need to resolve them. I have seen copies of these letters. The Council was unaware of any action by Mr F and understood he had been told to contact the LLFA.
20. In November, Mr F contacted the Council as the problem continued. He was unhappy he received no written advice from the officer in 2019. He asked for a written opinion about who was responsible for the problem. In his letter, he said he had a private firm inspect the culvert and drain pipes which found a blockage on his neighbour’s land, possibly by tree roots. He also said Mr G had sought his own advice and was told it was not his responsibility because the problem was caused by a blockage under Mr F’s neighbour’s property.
21. The officer said this implied it was a culvert, not a drain, and told Mr F he should contact the LLFA which was the regulatory body for culverts. Mr F was unhappy with the officer’s change of opinion. In response to my draft decision, the Council explained this view was partly influenced by the advice Mr G obtained.
22. In early 2023, the officer visited the site and found a constant light flow of water with no sign of restriction. Photographs were taken, copies of which I have seen.
23. The Council told Mr F that during visits and inspections the flow in the culvert on his drive was clear and free flowing. The water was caught from adjoining land. The letter mentioned riparian ownership. A riparian owner is someone with any watercourse within, or adjacent to, their property’s boundary. Such owners are responsible for the watercourse including letting water flow naturally through it. This means they have to remove blockages. Each section of a culvert/water course is owned by the owner of the land through which it passes.
24. Mr F is unhappy because for the last few years, he chased Mr G about problems with the drainage. This lost him the chance to talk to the previous neighbour further down the drain flow about him carrying out works to ensure the drainage was not blocked. In addition, he says he dug shallow trenches for nearly 100 metres to take the overflow away and built a low block wall to protect his shed, cellar, and house. He believed the new neighbours would ensure the drainage was replaced during construction works on their land.
25. The Council apologised for the misunderstanding which caused Mr F to believe it classified the pipe as a drain (a system of pipes or channels designed to carry away excess water from a building or its curtilage) rather than a culvert.
26. When Mr F complained about the Council’s actions, it told him the officer initially decided it was a drain rather than an ordinary watercourse because of limited water flow and it was not known whether the water discharged into a sewer or land/pond. The officer did not consider his assessment was as definite as Mr F claimed. This was because land drainage systems are very complex, and this was only an initial assessment. Nor was any further investigation carried out. The Council apologised for any misunderstanding which caused Mr F to conclude the pipe was a drain rather than a culvert.
27. The Council accepted it delayed responding to some of Mr F’s correspondence for which it apologised but noted this was a department with high work volumes which has to prioritise cases.

My findings

28. I make the following findings on this complaint:
1. The Council was not responsible for the land from where the water originated or passed through.
2. There is no record of the officer, at or during the initial visit, telling Mr F the culvert was a drain which was the responsibility of Mr G.
3. The Council accepted the officer initially considered it was a drain because of the limited flow at the time of the visit.
4. The officer contacted Mr G on a couple of occasions about the problems Mr F experienced.
5. Although the Council told Mr F the officer thought it was a drain, it also said this was not as definitive as Mr F believed. I consider this highlights the fundamental problem with the way the Council dealt with Mr F on this issue. This is because I am satisfied it failed to communicate with him clearly and effectively following its initial visit in 2019. This was fault.
6. I reached this conclusion because the Council failed to:

• confirm, in writing, the outcome of this visit. I note the Council has already apologised for this failing;
• explain its role, the role of the LLFA, and what the Council was going to do, and why after this visit;
• explain the nature of its contact with him was in an advisory capacity only;
• advise him he might need to get his own legal advice about responsibility and liability for water passing across his land, Mr G’s land, and that of his neighbour;
• explain the difference in notes provided by Mr F with those it provided to us. While the screen shot Mr F provided is undated, its wording suggested it was made following the initial visit in 2019. If this was the case, there is a question as to why this differed from the record the Council sent us in response to our enquiries if they are both a record of the same visit;
• correct the claim Mr F made in his email sent in December of what the officer had told him about Mr G’s responsibilities;
• tell Mr F, when it visited in early 2020, that it had done so and why; and
• tell him, after this visit, it was now closing the case and why.
7. I am satisfied the identified fault caused injustice to Mr F. This caused some confusion, uncertainty, and possible lost opportunity to understand the Council’s own limited role and to get the matter resolved sooner.
8. When considering injustice, I noted that: the catchpit and the culvert are on Mr F’s land; he always had the option of getting his own legal advice about his responsibilities and liability for water passing through his land; he could also have sought legal advice about any ongoing flooding as this was ultimately a civil matter for him, Mr G, and his neighbour to resolve; there was no contact between him and the Council from 2019 and 2022 which meant the Council had no information of an ongoing problem it needed to investigate; had he known sooner, he might have had the works done sooner and by the previous owner of the neighbouring land; he failed to contact the LLFA himself.
9. I am also satisfied the Council did not always respond promptly to Mr F’s correspondence. I note this was due to high volumes of work. I also note the Council apologised at the time for the delays. I am satisfied there is no outstanding injustice to Mr F on this complaint.

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Agreed action

29. I considered our guidance on remedies. I also took account of the apologies the Council has already given.
30. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send a written apology to Mr F for failing to: send him written confirmation of the outcome of the initial visit which also explained what the Council was going to do and why and the respective roles it and the LLFA had; explain the advisory nature of its contact with him; explain he might need to get his own legal advice and the rights and responsibilities of the three landowners; ensure the written record of the visit did not differ; correct the claim he made in his email after the visit about what the officer had told him; tell him of the subsequent visits and their outcomes; tell him it was closing the case and why.
2. Review procedures and produce guidance for officers to ensure clear information is given to members of the public reporting issues with drainage/flooding problems which explains the outcome of any initial visit, the role of the Council and the LLFA, the nature of any information given by officers, the possible need for them to get their own independent legal advice, correcting any misunderstandings promptly as they arise, advise about visits, and notifying them of its decision to close a case and the reasons for doing so.
3. Pay £100 to Mr F for the distress the fault caused.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I found fault on Mr F’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman