Summary: We will not investigate Mr X’s complaint that the Commissioners are failing to prosecute when there is a breach of byelaws intended to protect ‘the banks’ of drainage channels. There is no injustice to Mr X and we cannot achieve what he wants.

The complaint

1. Mr X complains the Commissioners are allowing tenant farmers and their subtenants to drive on the land or ‘banks’ next to the main drainage channels contrary to its byelaws. Mr X says the Commissioners should always prosecute when a byelaw is broken and stop damage to the banks.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered Mr X’s information and comments and discussed the complaint with him by telephone. I have considered the Commissioners reply to Mr X’s complaint. I have considered information on the Commissioners website including the byelaws.

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What I found

4. The Commissioner land drainage byelaws (1987) include the following:
1. No person shall ride, use, or drive an animal, cart, vehicle, or implement along the bank of the watercourse: ‘in such manner as to cause damage to such bank’ (byelaw 15).
2. No person shall deposit, store, or keep any rubbish, goods or any materials or things in such a manner: ‘to cause or likely cause damage to or endanger the stability of the bank or channel of the watercourse…or interfere with the operations or access of the board…’ (byelaw 16).
5. The Commissioners comment to this office and complaint reply to Mr X say the land/banks on either side of the main drain is occupied by its agricultural tenants who are allowed to use vehicles. Members of an angling association are allowed to fish. There is no public right of way along the banks. They understand Mr X was concerned about farm vehicles causing rutting along the riverbank where he walks his dog. Two officers, including the senior operations engineer, visited the area. The complaint reply explains why a trailer is stored on the land. Mr X tells me the trailer is not a problem.
6. Mr X tells me farmers are not allowed to drive vehicles on the banks. However, they drive tractors on the banks and plough up to the banks. Mr X says the banks are grassed over suggesting they should not be driven on. He wants the Commissioners to prosecute offenders.

Analysis

7. I will not investigate Mr X’s complaint for the following reasons:
8. The Ombudsman investigates fault causing injustice. Mr X does not have a personal injustice arising from the situation that concerns him or from any action or inaction by the Commissioners following the site visit.
9. We cannot achieve the outcome Mr X wants which is to tell the Commissioners that they must always prosecute where there is a beach of byelaw 15. The Commissioners would need to assess any breach of a byelaw or allegation of damage to the banks. Legal or other action would depend on the facts of the case.

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Final decision

10. The Ombudsman will not investigate Mr X’s complaint the Commissioners are failing to prosecute when there is a breach of byelaws intended to protect the banks of drainage channels. There is no injustice to Mr X and we cannot achieve what he wants.

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Investigator's decision on behalf of the Ombudsman