Summary: There is no fault in how the Council reached its decision Mr B is illegally connected to a highway drain. To settle this dispute Mr B needs a legal determination. Mr B finds it stressful when the Council refers to taking legal action. However, it has not yet done so, and so Mr B is not significantly disadvantaged. There is no fault in how the Council has reached its decision this drain is not a priority for works. The Council regularly maintains the drain and takes action if necessary when it receives reports of problems.

The complaint

1. The complainant, who I will call Mr B says, the Council’s position about drainage from his property cannot be right. Mr B contends that he drains into controlled waters, rather than the Council’s view he drains into a highway drain. Mr B says the Council cannot be right because:

• He has consent to discharge to controlled waters.
• He complied with all requirements from planning and building control regarding drainage when the property was built.
• The ‘drain’ is not on the Council’s Highways assets maps.
• The Council did not previously dispute the issue.

2. Mr B says the Council’s stance is causing him stress, he feels threatened as the Council says it may disconnect his drainage connection. Mr B has put much time and effort into looking at other drainage solutions and trying to reach a resolution. Mr B just wants a resolution to the problem so he is not left with a property he cannot sell.
3. Mr B says the Council is failing to maintain the drain; when it is blocked, he is at risk of flooding from sewage. Mr B feels the Council is not open to negotiation to find a practicable solution and is not helping its local community.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered:
• Information from Mr B, including during telephone conversations.
• Information from the Council in response to my enquiries.
• The Highways Act 1980.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

8. Mr B built his property almost 30 years ago. Because of the rural location there is no mains sewage supply. Mr B installed a biofilter to make the domestic wastewater safe to release back into the environment. Mr B got consent from the National Rivers Authority to discharge treated sewage effluent to controlled waters.
9. Mr B says he acted under advice of relevant professionals, including Council staff, about where to connect his treated wastewater output. A Council officer told him to connect at a different point to the National Rivers Authority permission. For years the Council raised no problem with him. When Mr B’s system was blocked, he contacted the Council, and it would eventually take action to clear its drains and get the system flowing. But Mr B says something changed in 2007 and the Council became unwilling to listen to his concerns about blocked drains, which causes his wastewater to back up and he worries about flooding.
10. Mr B and the Council are in dispute about whether Mr B’s wastewater should be connected at the point it is. Mr B employed a professional company who completed a report. Their professional opinion was that Mr B connects to a culverted watercourse.
11. The Council has considered the professional report and has been in correspondence with the Environment Agency (who replaced the National River’s Authority). The Council’s view is that Mr B has illegally connected into a highway’s drain and it has no responsibility to transfer his wastewater to controlled waters.
12. The Ombudsman cannot decide who is correct, it can only look at how the Council reached its decision. Mr B would have to challenge the Council in court to determine who is correct.
13. The Council has several times mentioned disconnecting Mr B and others from connecting into the highway drain. The Council says it is at risk of polluting a watercourse if property owner’s biofilters break down and contaminated waters enter the highway drain and are transferred to waterways. The Council says it could be prosecuted for this. The Council can act under the Highways Act 1980. The Council has taken some action to remove some illegal drains, though has not taken any such action against Mr B. Mr B feels threatened by these comments, they leave him uncertain about what action the Council might take and when it might take it.
14. Mr B just wants to comply and for there to be a solution. Mr B cannot understand how this issue has arisen when he did everything he was asked to do when he built the property. Mr B has investigated many options to change the removal of his wastewater but has not yet found a suitable solution. Mr B asked the Council whether it could allow him an exception to continue to discharge to its drain, but the Council has refused this.
15. In 2019 Mr B reported a blockage to the Council, despite works it had undertaken. It took around a year for the Council to do works to resolve the issue.
16. When I discussed the case with Mr B at the start of my investigation, he was not experiencing any problems. Following heavy rain in January his system backed up and there was standing water on his property and on the highway.
17. The Council knows of problems with the drain caused by an ingress of tree roots. Over ten years ago the Council said it would act against the owners of the trees to make good the damage but has never done so.
18. Mr B wants the Council to either keep the drains in good condition with a regular maintenance programme, or act on concerns when he and others raise them, to keep his system working without any blockages. The Council says it cleans the drains each year. If there are blockages it will program further works. In the intervening period it will act on any reports it receives. The Council says the drain functions adequately for its purpose to drain water from the highway, though its records show that over ten years ago it recognised the drain would likely need replacing to ultimately solve its problems. The Council has not yet allocated any funding to replace the drain.

Was there fault causing injustice?

19. Mr B and the Council are in dispute about the discharge of Mr B’s wastewater, the Ombudsman cannot decide this point of dispute. I can only look at whether there was fault in how the Council made its decision.
20. I am satisfied that in reaching its professional decision, the Council has considered all Mr B’s evidence, including his professional report. The Council has sought information from the Environment Agency. Relevant officers made the decision on behalf of the Council. I therefore cannot question or criticise the Council’s decision, even though Mr B strongly disagrees with it.
21. Mr B says he complied with the requirements of all the professionals involved when the wastewater drainage was installed. Due to the passage of time, it is not possible for the Ombudsman to conclude with any certainty what was agreed. It is possible the Council and/or National Rivers Authority gave Mr B poor advice and/or the Council failed to keep adequate records to show what it agreed. However, even if the Council gave bad advice and did not raise any concerns for years, that does not mean it is not now entitled to do so. The Council’s view is that Mr B is illegally connected to its drain, and the Council is legally entitled to act on what it considers is an illegal connection.
22. Mr B finds it stressful the Council has mentioned taking formal action. I appreciate this is worrying for Mr B, but the fact the Council has not so far taken such action does not disadvantage him and does not cause him a significant injustice. The Council has made its position clear his connection is illegal and Mr B should look at alternatives or seek legal advice.
23. The Council knows there is a problem with the drain and has not yet assigned funds to replace it. The Council must decide how to prioritise its spending. It says the drain performs adequately as a highway drain so urgent works are not required. The Council has a maintenance program for the drains and clears this drain annually. The Council acts more frequently if required. Mr B confirms that when the Council clears the drains they function adequately, though it seems not for long before Mr B then must raise the issues again. Although it is frustrating for Mr B to keep raising issues, there is no reason for me to question or criticise the Council’s decision on the maintenance of the drain. The Council has taken its decision following surveys of the drain and considering the funds it has available.
24. If when Mr B reports concerns the Council fails to respond, he would need to complain about its service. To date I cannot say there has been fault causing a significant injustice. The Council may not have acted as quickly as Mr B would like, but he confirms it has acted to resolve the issues following reports of blockages and the drains then flow freely and there are no problems with his system. To date Mr B’s property has never flooded because of any blockages.
25. The Council is responsible to maintain and repair the roads for which they have responsibility, which sometimes includes the drains that run beneath. The Council has a legal duty to keep the highway free from flooding and provide adequate drainage. If water flows off the highway and affects private property, the Council may be liable for causing a nuisance. Mr B can take legal action against the Council if his property is damaged, and to challenge that the Council is failing to properly maintain the drains.

Back to top

Final decision

26. I have completed my investigation on the basis there is no fault by the Council. That is not to say the Council’s decision is right, as that is not my decision to make, but there is no fault in how the Council reached its decision. To settle the dispute Mr B would need a legal determination.

Back to top

Investigator's decision on behalf of the Ombudsman