Summary: Mr B complains about the way the Council has handled a drainage problem on Mrs A’s land. He says the Council incorrectly installed a drainage pipe and agreed to carry out works to the driveway which it is now refusing to do. The Ombudsman finds no fault on the Council’s part.

The complaint

1. Mr B complains on behalf of Mrs A, about the way the Council has handled a drainage problem on her land. In particular, he says the Council:
• installed a drainage pipe incorrectly causing it to be partially blocked with silt causing flooding; and
• agreed to raise the kerbs at the entrance to Mrs A’s property and re-surface part of the driveway joining the highway in 2014 but is now saying the works will not be done.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’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)

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How I considered this complaint

4. I have considered all the information provided by Mr B together with the Council’s responses to his complaint.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

6. Between June 2012 and January 2014, the lane on which Mrs A’s property is situated and the gardens of her property and neighbouring properties were flooded several times. The main cause of the flooding was the change of use of the land on the other side of the lane to a fruit farm. This land had previously been ploughed which trapped most of the surface water so it did not run across the lane. This was no longer the case and, in times of heavy rainfall, surface water carrying large quantities of silt flowed onto the lane, blocking gullies and drains.
7. In 2014 the Council agreed to clean the gullies and the drainage system. It also carried out a detailed survey which identified several locations in the lane where pipes had collapsed or were damaged. Some of these were beneath the carriageway and the contractor advised they should be replaced or lined. The survey also discovered that an outlet pipe was 300 mm higher than the inlet pipes which had caused a considerable amount of silt to accumulate in the system. Further investigations were carried out in 2015 and the Council agreed to lay 23 metres of pipe in Mrs A’s garden 300 mm lower to alleviate the problem. Mrs A agreed to contribute towards the cost of this.
8. The work was carried out in 2016.
9. At a site meeting in December 2017 Mr B pointed out that a considerable amount of silt had accumulated at the outlet of the pipe and asked what instructions the Council had given its contractors about the level at which the pipe should be laid. Officers said the contractor had not been given a specific level to work to. The Council’s engineer confirmed the pipe had been laid 300 mm too low.
10. Mr B made a formal complaint to the Council in March 2018. The Council accepted the pipe was laid at the incorrect level but was satisfied it was fulfilling its purpose in draining the highway so no further works would be carried out and further expenditure could not be justified.
11. Mr B challenged this giving various reasons why the Council’s view was incorrect. Officers reviewed the situation in light of his comments. They concluded that, despite Mr B’s concerns, the works fulfil their main purpose and the pipe was unlikely to silt to an extent that would have an adverse impact on the flow. Officers remained of the view that further expenditure of public monies on private land could not be justified. It waived Mrs A’s contribution towards the costs of the work in recognition of the fact that she is not satisfied with it.
12. Mr B challenges the Council’s decision stating that further flooding has taken place. But the Council says it is satisfied no further works are required in relation to flood risk or highway safety. It points out there is no legal requirement for it to improve drainage on private land. It has agreed to monitor the situation but will only consider taking action if there is evidence of an ongoing flooding problem impacting the highway network i.e. in response to reports of significant flooding on the highway.
13. Under the Highways Act 1980, the Council has a duty to maintain highways at public expense. This includes unblocking drains/gullies. There is no requirement for it to carry out works in respect of drainage/flooding on private land. This is the responsibility of the landowner.
14. It is not the Ombudsman’s role to decide what works the Council should carry out. That is a decision for the Council to take. The Ombudsman’s role is to consider whether there was fault in the processes and procedures followed by the Council.
15. I find the Council was at fault in that its contractors failed to position the pipe at the level recommended by the survey. However, officers have investigated and are satisfied the pipe is fulfilling its function. Officers have considered Mr B’s arguments as to why this is not the case and the findings of an independent report he commissioned. But they remain of the view that there are no grounds to carry out further works. They considered the pipe is fit for purpose and is doing the job it was intended to do.
16. I accept Mr B strongly disagrees with officers’ view, but the Ombudsman does not question the professional judgement of Council officers unless there is evidence of fault in the way their decisions were made. I am satisfied officers have properly investigated the issue and Mr B’s concerns. In these circumstances, there are no grounds to question their view that no further works are required.

Kerb/driveway

17. Damage was caused to Mrs A’s driveway by the flooding. The Council stated on several occasions between July 2013 and March 2015 that it would raise the kerbs along the frontage to create greater fall to the opposite side of the road and re-profile the hardstanding between the road and Mrs A’s gate. But it was agreed that, to save costs, the Council would not carry out this work until the lane was resurfaced. This was needed because of the general condition of the lane but the works were deferred pending the completion of a major development nearby as the volume of construction related traffic could result in damage to the highway in excess of normal wear and tear. The Council said it would carry out a survey with the developer to agree damage caused to the highway by construction traffic and negotiate a contribution towards the cost of upgrading the lane. The work to the lane was initially scheduled to be carried out in 2014/2015 but, because of a delay in completing the development, the survey was rescheduled for November 2018.
18. When responding to Mr B’s complaint, the investigator said she would enquire “whether there was an intention to carry out works to the lane following completion of the development”. In October 2018 Mr B asked her to confirm that the promised works would be included when the lane was upgraded. The investigator said she would respond following the survey which was due to take place in November 2018.
19. Meantime, Mr B visited Mrs A’s property and found the lane was closed and resurfacing work was in progress. He met with the Council’s project manager who had no knowledge of the survey scheduled for November 2018 or the works promised to Mrs A’s property or the collapsed/damaged gully connections under the carriageway.
20. Mr B proposed a solution which would avoid the need to raise the kerbs outside the property and disturb the new carriageway. The complaint investigator responded stating that the local highways team were aware of the proposed upgrading works of the lane but that the current resurfacing works were funded by another budget and this did not include any of the upgrading works. She said the Council’s current budget limitations did not allow for drainage issue action.
21. Mr B says the resurfacing of the drive is not a drainage issue but a question of repairing damage caused by previous flooding. He wants the Council to resurface the damaged drive and repair the gully connection under the drive as identified in the survey in August 2014.
22. The Council told Mr B, “while undertakings have clearly been given to you in the past, we are now in a different situation and circumstances have changed”. It said it was now in a different financial position with significant savings to make and a duty to ensure its limited resources were targeted at areas in most need/which would benefit the greatest number of residents. It said that, before undertaking this type of work, it had to consider the cost implications against the scale and impact of the drainage issue. Its view was that there was not sufficient evidence of a current drainage issue at the location to justify the expenditure.
23. This is a decision the Council is entitled to make. Although it raised Mrs A’s and Mr B’s expectations by agreeing to carry out the work in 2013-15, it is entitled to change its mind. It has explained the reasons for its decision to not carry out the works and there are no grounds to criticise that decision.

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Final decision

24. I do not uphold Mr B’s complaint.
25. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman