The Ombudsman's final decision
Summary: Ms X complained the about the way the Council handled reports of flooding at her property caused by blockages along a watercourse. Ms X said as a result her property continues to flood. We have not found the Council at fault.
The complaint
Ms X complains the about the way the Council handled reports about flooding at her property caused by blockages along a watercourse.
Ms X has asked Mr Z to act as her representative in relation to this complaint.
The Ombudsman’s role and powers
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) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
What I have and have not investigated I have not investigated whether Ms X is a riparian owner responsible for the maintenance of the watercourse to the rear of her property. This is because we cannot determine whether Ms X is legally responsible for maintaining this section of the watercourse and the courts would be better placed to decide this.
How I considered this complaint
As part of this investigation I considered the information provide by Ms X and the Council. I discussed the complaint with Mr Z and considered the information he sent to us. I sent a copy of this complaint to Mr Z and the Council and considered comments received in response.
What I found
Law and guidance 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.
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’.
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.
If the ‘proper flow’ of a watercourse is impeded, section 25 of the Act gives councils the power to serve a notice on a landowner requiring that they take action to resolve the problem.
What happened Ms X lives in a property which has experienced flooding. Ms X has two manholes on her land which have backed up and flooded her property. Underneath Ms X’s property there is a culvert which carries water to an open watercourse to the rear of Ms X’s property. The land where the culvert reaches the open watercourse is not owned by Ms X.
After reporting flooding at her property to the Council, it visited the site in March 2023. The Council found that there was a blockage where the culvert, which ran under Ms X’s property, met the open watercourse and this needed dug out. It could not determine whether there were any issues affecting the culvert under Ms X’s property.
The Council looked to see if it owned the land however it did not. The Council found the land where the blockage was located was unregistered. The Council also contacted a nearby estate to see if they knew or owned the land. The Council decided it was not responsible to unblock the watercourse.
In April 2023, Ms X complained to the Council about how it had dealt with the blockages of the watercourse.
In May 2023, the Council responded to Ms X’s complaint. The Council said the responsibility to ensure the proper flow of a watercourse was with the landowner. The Council said Ms X was the riparian owner of the culvert underneath her property. The Council said it had tried to identify the landowner where the blockage was but could not do so and the land was unregistered. The Council said it was not responsible for unblocking the watercourse. As the Council could not find a landowner it suggested Ms X could unblock the waterway or discuss resolving this with other surrounding landowners.
In Autumn 2023, Ms X paid contractors to unblock the waterway behind the rear of her property. She was also in contact with Northumbrian Water who confirmed the culvert underneath her property was blocked.
In October 2023, Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said: She did not believe she had personal responsibility for the watercourse to the rear of her property as it was not on her title deeds.
She believed there were blockages further up the watercourse caused by other properties.
It was unfair for the Council to suggest she could resolve this with other landowners and the Council had the ability to enforce riparian ownership.
She had spent a significant amount of money unblocking the watercourse and asked the Council to refund her for these costs.
The Council provided its final response to Ms X’s complaint in November 2023. The Council said: It was only responsible for repairing watercourses on land it owned. The culvert in question ran through Ms X’s property so she was responsible to repair this and the watercourse in question was on land not owned by the Council.
It has powers to require landowners to carry out work to maintain the flow through a watercourse but these are exercised on a case by case basis. The Council said it encouraged residents to try to address the issues with each other first.
It tried to find out who owned the strip of land behind Ms X’s property but was unable to do so. As there was no owner the Council could not put Ms X in touch with anyone to carry out the clearance of the watercourse.
It would write to a landowner further up along the watercourse and ask them to ensure the section of the watercourse was clear. The Council did this in mid-November 2023.
Ms X remained dissatisfied and complained to the Ombudsman. Ms X said she was unhappy that the Council had not carried out any further site visits since she cleared the watercourse. She also said the silt which was blocking the culvert underneath her property was from other properties and the highway so she should not have to clear this. Ms X also said the waterway behind her property does not form part of her property so she did not think she was a riparian owner.
Analysis After Ms X reported flooding at her property, the Council visited the site in March 2023. The Council decided it was not responsible to clear the watercourse. I have not found the Council at fault for its decision not to repair the watercourse. This is because the Council looked into whether it owned the land behind Ms X’s property. As the Council did not own the land it decided not to repair the watercourse. The Council also took steps to see if it could find out who did own the land so it could tell Ms X but was unable to do so.
Ms X disputes that she should have had to carry out repairs to the watercourse and that she is a riparian owner and asked the Council for a refund of her costs. I have not investigated this aspect of her complaint as mentioned in paragraph 7.
Since Ms X carried out repairs to the watercourse behind her property, she says the Council has not been out to inspect this and she believes there are further blockages which other properties are responsible for. Ms X would like the Council to look at the whole watercourse, determine where any blockages are and contact the relevant riparian owners as she believes these are causing flooding to her property.
The Council does not have a duty but a power to serve notice on riparian owners to maintain their section of a watercourse. In this case it has contacted another riparian owner and asked them to make sure their section of the watercourse is clear. From the evidence provided, there has been no further reports of blockages along the watercourse and Ms X does not have evidence that there is a blockage further along the watercourse.
In addition, Ms X told the Council that Northumbrian Water confirmed there is a blockage in the culvert under her property. Mr Z also confirmed this to the Ombudsman. The Council is not responsible for this section of the watercourse as it is on Ms X’s land. In light of this, I do not consider the Council was at fault for the actions it has taken since Ms X carried out repairs to the watercourse.
Final decision
I have completed my investigation and found there was no fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman