Summary: Mr X complained about the Council’s refusal to accept responsibility for highway run-off onto private property which has caused flooding at times. We should not exercise discretion to investigate this complaint. This is because it concerns a claim about negligence causing damage to private property. It is reasonable for Mr X to seek a remedy in the courts which are the proper body for deciding legal liability.

The complaint

1. Mr X complained about the Council diverting highway run-off into a drainage system on private land which affects his and adjacent properties, as a result he says his property has experienced flooding. He wants the Council to accept responsibility for maintaining the drainage system and prevent further flooding.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Mr X says his property has suffered flooding from highway run-off onto surrounding land. In 2017 the Council told residents it had no responsibility for the flooding in the drainage system under adjacent land. This is because it is not part of the highway drainage and it was the riparian owners who are the adjacent householders who are responsible for their own drainage on their land.
5. Mr X maintains that the Council have diverted the highway run-off into a drainage system and that they should maintain it.
6. The Council as highway authority has a duty to maintain the public highway and keep it clear for highway users. Its duty does not extend to adjacent private property. There are no good reasons for us to exercise discretion because claims of negligence causing damage would be matters for insurers and ultimately the courts to decide.

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Final decision

7. We should not exercise discretion to investigate this complaint. This is because it concerns a claim about negligence causing damage to private property. It is reasonable for Mr X to seek a remedy in the courts which are the proper body for deciding legal liability.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman