The EA’s response to calls and emails
35. After consulting Mrs I’s neighbour in February 2017, the EA decided no further action was required. We consider the decisions the EA made at this point were reasonable, and in line with the Common Incident Classification Scheme 2017. After reviewing Mrs I’s initial report of 4 February 2017 and the evidence she sent by email, the EA accepted the sewage system may not be working effectively but did not think there was significant pollution to either water or land which needed an urgent intervention. The sewage system operator told the EA he was working with a recognised contractor to replace the system and arranged to have the settlement tank emptied. If the system was either ineffective or not compliant with the relevant regulations, the contractor would be well placed in his professional role to identify this and propose remedial works.
36. On 6 February 2017, the EA emailed Mrs I to set out its position. It said, ‘It is always difficult with the opposing claim and counterclaim in neighbourly disputes but given the evidence provided thus far I feel that this response is in line with the environmental impact at this stage, and meets Environment Agency guidelines re incident categorisation and no requirement for attendance at this stage.’ It also told her it expected the sewage system would be replaced and it would keep her updated on the progress of that plan.
37. In August 2017 the EA was told by a contractor working on behalf of the sewage system owner that the system appeared to be operating effectively but would need some work. Mrs I contacted the local authority’s environmental health team on 21 August as she was unhappy with the time the system’s operator was taking to begin work to divert storm water drainage away from the sewage system. Her emails reflect that she had been told the owner would not be replacing the system, although this had not been relayed to her by the EA. The EA told us that it had not heard from either party between February and August 2017.
38. Mrs I complained the EA needed to chase up her neighbour to ensure speedier action. Having considered this, we do not think the EA had reason to pursue earlier action. It had not agreed a timeframe with her neighbour, but the General Binding Rules say the EA would usually consider 12 months a reasonable timescale for a system to be replaced. The EA received updates in August 2017 and, while we understand Mrs I’s frustration at the time it took for progress to be made, we see no reason why the EA could be expected to pursue earlier action based on the evidence available to it at that time.
39. We have not seen any record that Mrs I was in touch with the EA between February and November 2017, and there was little for it to tell her until August when it learned the plan had changed. In November, based on information it received from Mrs I, the sewage system owner and the local authority, it decided the dispute was ‘a civil matter between neighbours regarding run-off causing property flooding.’ Its records reflect that it decided this was more suitable for the local authority’s environmental health team, which was actively involved at that stage.
40. The EA did not contact Mrs I directly in response to the video evidence she sent in November 2017. It did not provide Mrs I with an update until December 2017 when it agreed to revisit its enquiries after she met an EA officer at a community event who agreed to relay her ongoing concerns.
41. The EA did not follow its plan to keep Mrs I updated. It should have updated her when it received new information and made decisions in August and November 2017, as it had committed to do. This would have been in line with Our Principles of Good Administration, which say ‘Public bodies should do what they say they are going to do. If they make a commitment to do something, they should keep to it, or explain why they cannot.’
42. As the local authority were actively involved at this point, and Mrs I was aware her neighbour had changed their plan, further updates from the EA would not have changed the situation or Mrs I’s understanding at that time. However, we think this lack of contact when Mrs I said she was expecting updates and was evidently worried could have caused avoidable uncertainty and frustration.
43. The EA has accepted its communication could have been better and has apologised for this. This is an appropriate and proportionate remedy for any avoidable frustration or stress it caused. This is in line with Our Principles for Remedy, which say ‘Public bodies should promptly identify and acknowledge maladministration and poor service, and apologise for them.’ It is also in line with our thinking on appropriate remedies on cases where there is a similar impact from mistakes, as set in our own Guidance on Financial Remedy.
The General Binding Rules
44. The EA was initially concerned the sewage system may need maintenance. It was told by a contractor working for the sewage system owner the system was effective but work needed to be done to remove the excess water that was flowing through the system. The works that took place in April 2018 and after were focused on remedying this problem.
45. We cannot see that the EA explicitly considered whether the water flowing through the system exceeded two cubic metres per day, until it documented its view that the evidence showed the flow was significantly less on 12 June 2019. Although there is no record that the simple volume of water flowing through was a concern before then, we note the EA expected excess water flowing through the system would be addressed as part of maintenance and improvements in 2018 and 2019.
46. The discharge site does not include a drainage field that meets modern standards. The General Binding Rules include provisions so that older systems installed before the relevant British Standards took effect (1983 in the case of EN 12566, and 2007 in the case of BS 6297) are not expected to meet contemporary standards, but must instead meet the standards effective at the time. They must also be operated in line with the manufacturer’s specification.
47. The EA explained the question of whether systems were operating as they were originally intended can be difficult for sewage system owners or their contractors to assess. It told us it would not usually expect intrusive and potentially disruptive investigations to take place unless a system was causing pollution and it could see such investigations were essential.
48. In its role as a regulator, the EA must consider whether pollution is occurring as part of its risk-based approach to regulation. This is required by the Regulators’ Code 2014. The question of whether pollution is occurring underpins the EA’s considerations when looking at the General Binding Rules, as without evidence of pollution there is unlikely to be a reason for action to be taken.
49. On 13 December 2017, the EA agreed to take a closer look at whether pollution or a breach of the General Binding Rules was taking place. It initially proposed to visit but, when weather conditions meant the EA officer could not reach Mr and Mrs I’s property as planned in February 2018, it relied on information it received from Mrs I and the local authority.
50. In November 2017, the EA decided the matter was more suitable for the local authority because no enforcement action was required by the EA. The information available to the EA at this point led the EA to say the system ‘was not operating as it should’ due to excessive amounts of water entering the system ‘causing flushing of the septic tank.’ The EA explained this when it emailed Mrs I on 28 February 2018. At that time, it also said it would be working with the local authority to look at improving the operation of the system and would also assess the long-term suitability of the system. Subsequent updates came from the local authority, who oversaw the investigations and remedial works by the system owner.
51. All parties seem to have agreed the sewage system was being overloaded with rainwater, which would disrupt the settlement tank and flush sewage out of the system. This was in addition to the impact of the amount of water being channelled to the discharge site. The EA decided the local authority would take the lead in assessing the extent of any problems, and we think this is reasonable in light of its role and that of the local authority. The EA would not usually have a role investigating or enforcing problems related to residential drainage and flooding and does not have any legal authority to do so.
52. The decisions the EA made appear to be in line with the General Binding Rules. From 2017 onwards it had questions about the level of maintenance the sewage system had received, and whether it was operating as it was intended to. However, the EA did not need to take an active role seeking a remedy to these problems as the local authority were looking at this. The EA’s decisions that the system was meeting the General Binding Rules and operating to an appropriate standard therefore rested on the outcome of the assessment of whether any pollution was occurring. The EA told Mrs I it did not consider the evidence it received from her and the local authority showed there was pollution and so there was no further role for it at that time. We will consider the specifics of that assessment in the following part of the report, but if the EA did not have evidence pollution was occurring it would not have grounds to say further action was required under the General Binding Rules.
The EA response to evidence from Mrs I
53. The EA needed to consider whether pollution was occurring that required it to intervene. This was an important consideration for the EA in deciding what action it should take, as both the General Binding Rules and Common Incident Classification Scheme require the EA to act only where pollution represents a significant environmental impact. The EA explained this to Mrs I and told her the Scheme helps it prioritise which incidents require it to act. We think it is also helpful to explain the Scheme draws on the numerous pieces of legislation which give the EA its regulatory and enforcement powers.
54. The EA told Mrs I on a number of occasions it considered there was either no evidence of pollution or no evidence of significant pollution. This was its view in February and November 2017, though it did not contact Mrs I in November and so did not give its view at that time. On 28 February 2018 the EA emailed Mrs I to say it considered there was only a minor environmental impact, based on information relayed by the local authority after its visit. Its view remained the same in the advice it gave on 15 August 2019, 20 November 2019 and 9 December 2020.
55. The EA’s assessment and subsequent view that the deterioration of Mr and Mrs I’s land represented a minor environmental impact was reasonable and consistent with the EA’s guidance. We recognise that this was not a minor issue for Mr and Mrs I and they remain deeply unhappy that part of their land is unusable and worry about potential long-term risks.
However, in the context of the EA’s role and work, there was no cause for it to have any further involvement, nor was there any real prospect it could take enforcement action. The Common Incident Classification Scheme sets out the following criteria for minor environmental impact:
· ‘Where hazardous substances are unlikely to get into the groundwater or will only do so to a minimal extent
· Public exposed to concentration levels that present no known or minimal risk to health
· Ground or surface water affected with minor impact and financial damage to agriculture or commerce’
For the EA to categorise an incident as having a significant impact, which leads to possible enforcement action, the relevant criteria are:
· ‘Public exposed to concentration levels giving rise to minor health problems due to contamination of surface waters or groundwater following a pollution or algal incident
· Silt or soil, low dissolved oxygen or high ammonia levels along an extensive stretch of a water body ... as a result of contaminants being transmitted in the groundwater flow
· Significant but localised damage to agricultural activity. Such as… distress to livestock and the need for veterinary treatment.’
56. When Mrs I contacted the EA in February 2017, she highlighted her concern that her vet had advised pathogens from the sewage system could affect her sheep’s fertility and they should not be allowed to graze the affected land. Mr and Mrs I fenced off the area around the discharge site. It is clear from this correspondence that she considered this to be evidence of a significant impact.
57. The EA did not think there was evidence to show that the sewage system was causing illness in her sheep, and action to manage any risk was already being taken. As the EA had clearly considered this specific concern, we do not consider the EA needed to categorise the incident as having significant impact at that point. Its consideration and decision are supported by the evidence and is in line with its guidance.
58. Mr and Mrs I sought to challenge this view in letters sent by their legal representatives. The solicitor’s letter sent to both the EA and local authority on 2 July 2018 pointed to concern about ‘unsanitary discharge’ on to Mr and Mrs I’s land and groundwater ingress into the sewage system. It included a report from a chartered building surveyor acting on behalf of Mrs I who noted ‘from my visual inspection it is apparent there is a discharge of fluid and material which is questionable and potentially damaging’ and ‘it is apparent that there has been a significant deterioration of the ground to the area of the outlet to such a degree that indicates a non-compliant septic tank discharge.’ The surveyor also made recommendations for further investigations.
59. The local authority responded to this letter with agreement and advice from the EA. It explained the EA considered the system was compliant with the General Binding Rules. The local authority had already decided to bring in a six-month monitoring period at this point. The EA did not see that there was a need to alter that approach and, considering the available evidence, we have not seen anything to suggest it needed to escalate its actions at that point. The discharge on Mrs I’s land did not indicate the EA needed to further investigate the sewage system with reference to the criteria set out in its guidance, which it had already considered on a regular basis.
60. A different solicitor acting on behalf of Mr and Mrs I wrote to the EA on 9 August 2018. This letter asserted that the site of the discharge from the sewage system ‘has been inundated by much greater volumes of water than it can cope with for some considerable time.’ It gave an account of the concerns regarding water ingress into the system, and of Mrs I’s view of the discharge and that she considers ‘the current soakaway [discharge site] is unsuitable for its intended purpose and does not function correctly.’ We can see those parts of this letter relevant to the EA are an account of Mrs I’s views rather than a legal challenge.
61. The EA responded with reference to its Common Incident Classification Scheme, explaining it remained of the view Mrs I’s reports had been followed up as appropriate and in line with the minor environmental impact it had identified. It said it had advised the sewage system owner on removing excess water ingress from the system, its advice had been acted on, and a period of monitoring was currently ongoing. It said it would review whether enforcement action was necessary at the end of the monitoring period.
62. The EA’s reply explained it did not consider the condition of the discharge site required it to intervene. This letter addressed two issues that Mrs I had raised: that the land was polluted, and that the discharge site was no longer working effectively. It did not respond directly to the point that the discharge site was no longer operating as intended, but said the sewage system had been operating like this for many years and the General Binding Rules did not include further requirements for how discharge to ground should be managed.
63. Mrs I submitted further evidence of the problems on her land directly to the EA following this. On 15 October 2018 the EA told her the video evidence she had sent showed more water than it would expect was flowing through the system and this should be addressed as part of the remedial works the local authority were facilitating. The EA did not identify any evidence of pollution in the videos she sent up to that point. It reviewed a number of pieces of video evidence Mrs I sent in January 2019 and did not consider they required it to take additional action, although it noted it was waiting to see the outcome of further works at that time. It remained of that view after Mrs I sent video and photographic evidence in January 2019.
64. Having carefully considered how the EA looked at the evidence Mrs I provided and set out its view in its response, we decided its conclusions that there was a minor environmental impact was consistent with the evidence and the Common Incident Classification Scheme.
65. Mrs I was particularly unhappy with how the EA viewed the sampling results it received from the local authority. On 15 August 2019 the EA advised Mrs I the sampling taken showed the discharge from the sewage system was of ‘satisfactory quality’ and would be ‘unlikely to cause any environmental impact.’ Mrs I wrote back to the EA on 29 August 2019 to explain why she did not consider the sampling results it had received so far were acceptable. She said the operator of the sewage system had agreed to replace the pipe running from their house to the settlement tank but had not done so, meaning that defective pipe was allowing water ingress which would dilute any sampling results. She said that a sample taken on 6 March by a contractor working on behalf of the sewage system owners should not be considered reliable as they ‘are quite capable of submitting false information to the authorities.’ She said the amount of rainfall at the time meant the sample ‘would probably have been almost pure groundwater.’ She said sampling collected by the local authority on 13 June would have been similarly diluted, and thus unrepresentative.
66. The EA received further samples from the local authority and, on 22 November 2020, Mrs I explained the samples taken were, in her view, ‘entirely meaningless’ because of the extent to which they were diluted by groundwater ingress. She complained that the process the local authority sampling technicians followed was not sufficiently scientific, and that a reliable sampling regime would need to ensure no surface water was present in the sample.
67. In its replies to her complaints about the sampling process, the EA did not address the specific claim that samples were invalid due to groundwater ingress. It explained that sampling was used as part of its assessment and explained the process it follows to ensure samples are reliable evidence.
68. The EA responded on 8 November 2019 and confirmed it was satisfied the analysis results showed low levels of pollution. It did not specifically address Mrs I’s concern about the timing of the sampling then, nor when it replied to Mrs I’s 19 November letter in which she said flushing of the system meant ‘the analysis results were meaningless and do not in any way represent this system operating under normal operating conditions.’
69. We considered the context in which the sampling was taking place. It was intended to inform an assessment of whether the system was operating as it should. It was recognised that surface water could still enter into the system and could still interrupt the sewage system’s normal operation. It is difficult to see how a sample without groundwater would represent normal conditions and, on the occasions where sampling technicians attended in dry weather, they had difficulty collecting samples and in one instance could not do so.
70. Sewage discharge to surface water should not exceed certain levels of pollution, but there are no such standards when a sewage system discharges to ground. Sampling was intended to inform decision making but was not a test of whether the sewage system could continue operating. This does not mean the sampling should not have been robust or accurate, and the EA did ask that samples be collected across a range of weather conditions. Sampling would only ever capture a snapshot from a moment in time, and it was reasonable to seek to base decisions on a representative range of samples. It was only intended to achieve a broadly representative sample and, as noted before, the local authority did follow that advice.
71. Mrs I may feel the intention of the sampling should have been different. Recognising that sampling was only one part of what the EA would consider in its decision making, and that the sampling provided to the EA was only intended to give a representative picture of what was discharging from the sewage system over a number of months, it was reasonable for the EA to accept those samples. We have not identified any standards that say how the EA should have approached this specific matter, but are satisfied that it was acting in line with our Principles of Good Administration, which say organisations should seek to ‘get it right’ by taking account of relevant considerations.
72. We do not consider the EA should either have disregarded the samples it received or given alternative advice as to how sampling should be performed.
The effect of the works done
73. We recognise that the presence of the sewage system discharge on Mr and Mrs I’s land has caused what they describe as a noticeable deterioration. We recognise they feel distressed by that deterioration and frustrated that from their perspective it could not be stopped. Clearly the EA were only one party to concerns raised about this problem and, considering its role and obligations, which we have set out in this report, we would not expect the EA to be able to remedy the problem on her land. Neither permanently stopping the sewage system discharging nor seeking for their land to be restored fall within its range of enforcement powers.
74. For the reasons set out above, we have not upheld this complaint.