Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has failed to change the design of a grid in a stream in order to stop repeated blockages. This is because it is unlikely the Ombudsman would find fault in the way the Council reached its decision and a court of law may be the appropriate body to determine the matter.

The complaint

1. The complainant, Mr B, complained that the Council has failed to change the design of a grid in a stream in order to stop repeated blockages that he has had to clear. Mr B told us his home would have been flooded had he not cleared the blockages and he is very anxious about the future flood risk.

Back to top

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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

3. 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)

Back to top

How I considered this complaint

4. I have considered the information Mr B provided and given him an opportunity to comment on my draft decision.

Back to top

What I found

5. Mr B told us the metal grid system the Council installed about 17 years ago was designed to an approved design at that time. But he says a better designed grid 20 metres away does not get blocked. He said if the Council would change the design of the first grid to that of the second grid, the problem would be almost solved. Mr B said the first grid does not meet the requirements of the Land Drainage Act 1991 (the Act). He says the Act allows persons who cause flooding to be prosecuted.
6. Mr B told us he can no longer clear the blockages himself and, during 2019, there were three almost total blockages in a five-week period. He said the stream bed has risen significantly. Mr B said the Council has reduced the frequency of its clearing of the stream debris.
7. People normally own a watercourse which passes through their land. They are known as riparian owners. Riparian owners are responsible for maintaining the watercourses on their land. The Council has explained to Mr B that the riparian owner remains responsible for the stream even though it had installed a culvert screen and it carries out periodic maintenance. When responding to Mr B’s complaint the Council said its officer would remind/prompt the riparian owner of their duties for keeping the section of the stream on their land clear of debris. The Council said it would seek funding for improvements to the screen to reduce maintenance requirements.
8. In its response to Mr B’s complaint the Council said the culvert screen complied with best practice at the time of installation. So its view is its installation of the screen was not in breach of the Land Drainage Act. The Council’s view is the screen is not the sole cause of total blockages of the culvert. The Council said it had changed the nearby screen because it was damaged. As the riparian owner of that part of the stream, the Council said it had a legal duty to maintain it.
9. Councils have powers, not duties, under section 25 of the Act to ensure riparian owners carry out appropriate maintenance. Councils can use these powers if they believe a lack of maintenance is leading to a flood risk. They will normally seek a resolution informally in the first instance.
10. Mr B said the Council has acted as judge and jury in deciding whether it has committed an offence. He said an independent judge should make a ruling. He does, of course, want measures to be taken to reduce the possibility of flooding to his home. But in this case the Council has taken the steps we would expect in considering the issues Mr B raised. It considered the information he and its officers provided and explained that it believes the riparian owner is responsible for the maintenance of the grid it installed. So it is unlikely we would find fault by the Council. In any case, if Mr B is seeking a ruling on whether the Council has complied with the law, a court of law and not the Ombudsman, would be the appropriate body to determine the matter. The Ombudsman does not have powers to order the Council to take the action Mr B wants.

Back to top

Final decision

11. The Ombudsman will not investigate this complaint. This is because it is unlikely he would find fault in the way the Council reached its decision and a court of law may be the appropriate body to determine the matter.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman