Summary: Mr X complains about the Council’s decision that it is not responsible for maintenance of a damaged pipe which runs under the Council’s land. We find no fault with the Council. This is because the Ombudsman cannot decide whether the watercourse is natural or artificial. Therefore, it is not possible to decide if the Council has riparian ownership of the watercourse.

The complaint

1. Mr X complains about the Council’s decision that it is not responsible for maintenance of a damaged pipe which runs under the Council’s land. Mr X says the damaged pipe causes the drain to back up which then damages the drainage pipes on his property.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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)

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How I considered this complaint

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent two draft decisions to Mr X and the Council and considered their comments.

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What I found

Legislation and policy

8. The Land Drainage Act 1991 sets out the definition of a watercourse. Section 72(1) notes that an “ordinary watercourse” means a watercourse that does not form part of a main river. It also notes that “watercourse” includes all rivers and streams and all ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers) and passages, through which water flows.
9. It is the responsibility of the riparian owner to maintain the watercourse to such a condition that the free flow of water is not impeded. A riparian owner is anyone with watercourses on, next to, or under their property or land.
10. The Council has published an information document which sets out that a watercourse is “every river, stream, brook, ditch, drain, culvert, pipe and any other passage through which water may flow. A watercourse can be either natural or man-made. Watercourses do not include public sewers but could be in a pipe under the ground.”
11. The information document also sets out that an ordinary watercourse is “any river, stream, ditch and culvert not defined as a main river. The responsibility for maintenance of an ordinary watercourse lies with anyone who owns land or property adjacent to a watercourse. This is known as riparian ownership”.
12. The general principles of riparian ownership do not apply to artificial watercourses. This was established in Rameshur Perhshad Narain Singh v Koonj Behari Pattuk (1876) 4 A.C. 121. In this case, the Judge noted that for artificial watercourses, the flow of water must rest on some grant or arrangement. This position was further supported in Baily & Co v Clark, Son & Morland (1902) 1 Ch. 649. In this case, the Judge noted that in the case of an artificial watercourse, any right to the flow of water must be based on some grant, whether in an easement or otherwise.

What happened

13. Mr X’s property has separate foul and surface water drainage running parallel down his drive. The foul drain connects to the public sewer. The surface water drain joins into another drain (not a public sewer) which runs along the pavement and discharges via an outfall, into a ditch, further down the road.
14. Mr X commissioned a company to survey the drain. The survey found there was section of the surface water drain situated under land owned by the Council that was damaged.
15. The Council accepts it is owner of the land where the damaged drain is located under. In response to our enquiries, the Council said it did not accept that the surface water drain was a watercourse. The Council said “for a watercourse or ditch to have a status of a watercourse, it must have started life as a watercourse i.e. an open channel constructed to collect land drainage”.
16. The Council said it did not accept it had riparian owner responsibility for the surface water drain as it did not consider the drain to be a watercourse.

Analysis

17. The Council’s view on whether the surface water drain meets the definition of a ‘watercourse’ is not in line with the law. The Council says for a watercourse to have a status of a watercourse, it must have started life as an open channel constructed to collect land drainage.
18. However, the Land Drainage Act 1991 is clear that watercourse includes all rivers and streams and all ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers) and passages, through which water flows. There is nothing set out within the Act that states the passage needed to have been constructed to collect land drainage.
19. Further, the Council’s own publicly available information document also sets out that a watercourse is every river, stream, brook, ditch, drain, culvert, pipe and any other passage through which water may flow. It notes that a watercourse can be either natural or man made and that it could be in a pipe under the ground. This is in line with the definition as set out in the Act.
20. Therefore, I am satisfied that, on balance, the surface water drainage pipe in question is a watercourse. This is because it meets the definition of a watercourse as set out in the law.
21. However, riparian rights and duties only apply to natural watercourses, they do not apply to artificial watercourses. While I am satisfied the pipe in question meets the definition of a watercourse, it is not possible for me to say whether the watercourse is a natural or artificial watercourse. This is a decision only the courts can make.
22. As I cannot say whether the watercourse is natural or artificial, I am unable to conclude the Council has riparian ownership of the pipe. Therefore, I cannot say the Council has responsibility to maintain the pipe located under its land.
23. It is open to Mr X to seek independent legal advice and to pursue the matter further in court.

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Final decision

24. I find no fault with the Council. This is because the Ombudsman cannot decide whether the watercourse is natural or artificial. Therefore, it is not possible to determine if the Council has riparian ownership of the watercourse.

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Investigator's decision on behalf of the Ombudsman