Summary: We will not investigate this complaint about water from a road flooding Mr Q’s garden. He may go to court about the matter.

The complaint

1. The complainant, who I have called Mr Q, complained that North Yorkshire County Council has failed to take action to prevent water running from the road and flooding his garden. He is concerned about the pollutants being washed into his garden.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)

Back to top

How I considered this complaint

4. I considered the information Mr Q provided. I considered the information the Council provided. I invited Mr Q to comment on a draft of this decision.

Back to top

What I found

Background

5. The County Council is responsible for the road Mr Q complained about. The Highways Act 1980 places a duty on the Council to deal with water on the road. But there is no such duty to deal with water run-off onto adjacent land.
6. Claims of negligence or nuisance can be considered in the courts.

Key facts

7. A boundary wall separates Mr Q’s property from a road. Water runs off the road through drainage holes in the boundary wall into his garden. Mr Q said his garden floods every time it rains. He is also concerned about possible pollutants in sludge that washes into his garden. He said he has found his young children playing in it and he is concerned for their health.
8. Mr Q said the Council told him in 2014 that it would divert the drains and this would be done within the next six months. But nine months later, the Council denied saying this. Officers visited Mr Q again in 2015 following further flooding, but said the Council would not rectify the issue.
9. More recently, the Council confirmed its 2015 decision. Its view is that the wall and drainage holes existed before Mr Q’s house was built and, historically, water drained from the road onto the land that is now his garden.
10. Mr Q said the Council is discharging a nuisance onto his land. He said the run-off causes damage and is a danger to his children’s health.

Analysis

11. We will not investigate this complaint.
12. The Council has no duty to deal with the water running off the road into Mr Q’s garden. However, in effect, Mr Q is saying the Council is negligent for failing to control or divert the run-off. He also believes the run-off is a nuisance that may affect his children’s health. Negligence and nuisance are matters the courts can and do deal with. It is not our role to say whether the Council has been negligent or if the run-off is a nuisance. So it would be reasonable for Mr Q to go to court.

Back to top

Final decision

13. We will not investigate Mr Q’s complaint. This is because he may go to court.

Back to top

Investigator's decision on behalf of the Ombudsman