Summary: Mr X complained the Council wrongly claimed he was responsible for maintenance of a pipe that borders his land and has made a claim against him for repair costs. We have discontinued this investigation. The Ombudsman cannot decide who is responsible for the pipe and the claim for costs was issued to Mr X by another body and not the Council, and so the matters complained about are out of our jurisdiction.

The complaint

1. Mr X complained the Council wrongly claimed he was responsible for maintenance of a pipe that borders his land and has made a claim against him for repair costs. He says the Council’s position that it is a natural watercourse is inconsistent with the water company, who currently classify it as a private sewer. He says despite evidence responsibility lies either with the water company or the Parish Council, the Council has refused to withdraw its claim for repair costs for the section of pipe bordering his land, which has caused him financial uncertainty and distress.
2. He wants the Council to accept he is not responsible for maintaining the pipe, withdraw its claim for against him for repair costs and restore the condition of his back garden.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of other bodies such as water companies. (Local Government Act 1974, sections 25 and 34A, as amended)
4. The Ombudsman also has no power to investigate the actions of Parish councils.
5. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

8. I read Mr X’s complaint and spoke to his representative about it over the phone.
9. I made enquiries of the Council and considered information it sent me.
10. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

11. A landowner will normally own a stretch of watercourse that runs on or under their land, or on the boundary of their land, up to its centre. A watercourse can include rivers, brooks, ditches streams or culverts. A landowner has responsibility for the stretch of watercourse they own. This is called riparian responsibility.
12. Water companies are responsible for maintaining their infrastructure and reducing the risk of flooding from sewers or pipework for which they are responsible.
13. Hampshire County Council is the lead local flood agency in the area. Its duties include:
• responsibility for preparing and maintaining a strategy for local flood risk management; and
• working in partnership with other flood risk management authorities.

What happened

14. Mr X’s property has a piped watercourse at the bottom of his back garden. The land on the opposite side of the watercourse is owned by the Parish council. The watercourse has flooded periodically since 2009, causing damage to Mr X’s back garden. Mr Y has conducted research on the matter and has represented Mr X during his complaint.
15. Since 2015, there has been an ongoing dispute about who is responsible for maintaining the pipe.
16. In 2016, the water company completed an investigation. It concluded the watercourse was not their asset and so it was not responsible for maintaining it. The water company said it had never been a public sewer, and although it was marked as such on their map, this was a mapping error and needed to be corrected.
17. In 2017, the Parish council commissioned a further survey. This concluded that the water company might be responsible for the pipe, but further investigation was needed.
18. The Parish council asked the Council to provide an estimate for the necessary remedial works to stop the pipe from flooding. The County Council did this and says it estimated the cost required to be between £150,000 and £200,000. Mr Y says he believes the estimate for replacing the pipe was around £300,000.
19. In 2019, the Parish council commissioned a land survey to establish the exact position of the pipe in relation to residents’ properties. Once established, it sent Mr X a letter setting out how much of the pipe he was responsible for and a calculation of how much he needed to contribute to the cost of the works. Mr X’s assessed contribution was £11,252.
20. In 2020, Mr X contacted the Council. He said research had found new information that showed the Parish council were solely responsible for maintaining the pipe, unless the water company accepted it was a public sewer, in which case the water company would be responsible. He requested the Council’s help to resolve the matter.
21. The water company met with the Council and the Parish council in July 2020 and discussed the case. The Council shared mapping information it held with the water company. The water company said it needed to complete more investigations before deciding whether the pipe was its asset.
22. In August 2020, the Council chased the water company again but got no response. Mr Y told the Council the delay in confirming who was responsible for the pipe meant that the repair work still could not start. He asked the Council to decide who was responsible and confirm when the work could start.
23. In September 2020, Mr Y complained to the Council. He complained about delay in the water company’s investigation and the delay to starting the repairs.
24. The Council responded to say the water company was currently disputing it was their asset. It said it could not commit public funds to the repair work until the dispute about responsibility was resolved. It said the Council was not responsible for the watercourse but wanted to work with all parties to ensure the flood risk was reduced.
25. Mr Y was dissatisfied with this response and escalated his complaint. The Council responded and said:
• The water company’s current position based on its 2016 investigation is that it is not responsible for the pipe.
• In light of information provided by the Council and Mr Y, the water company said it needed to complete further investigations. The Council had contacted the water company several times to ask for the outcome of these investigations and for a decision on whether it was responsible for the pipe, but the water company had not responded.
• The Council had now escalated the matter within the water company.
• Whilst the water company maintained that they were not responsible, it was appropriate for the Council to class the pipe as a watercourse, in which case responsibility lay with the appropriate riparian owners.
26. It concluded the Council’s actions to support Mr X and try and resolve the situation had been appropriate and did not uphold Mr Y’s complaint.
27. The Council chased the water company for a response again during October and November.
28. Mr Y remained dissatisfied but the Council maintained it had acted appropriately to try and resolve the dispute, fulfilling its duty as the lead local flood authority. It said it would continue to press the water company for a response.
29. The Council chased the water company again in December 2020 and January 2021. The water company said it was producing a report with the result of its investigations.
30. Mr Y brought the complaint to us on Mr X’s behalf in January 2021.
31. In February 2021, the water company produced its report. The report concluded the pipe was not a water company asset and was a private watercourse.
32. In its response to our enquiries, the Council said that based on the conclusion of the water company’s report, it considered it a piped watercourse. It said it had made efforts to clarify the water company’s position throughout 2020 but the water company had not responded to the request. It said it was not it but the Parish council who billed the residents. This was after the Council made the Parish council aware of its riparian responsibilities.
33. The Council said the Parish council was currently taking legal advice, but at present it considered the pipe a watercourse, and so riparian responsibilities would apply for the relevant landowners.

Analysis

34. Our investigation has confirmed that the claim sent to Mr X for a contribution towards the repair costs was issued by the Parish council and not the County Council. The actions of parish councils are out of our jurisdiction. Because of this, I cannot make a finding on whether this action was appropriate, nor can I instruct the Parish council to withdraw its claim against Mr X.
35. I cannot make a finding on the substantive issue or achieve the outcome Mr X wants. This is because we cannot decide who owns or is responsible for the watercourse. Only the courts can do this. Therefore, I have decided to discontinue this investigation.
36. The Council was not responsible for the watercourse but had a duty as the lead local flood authority to work in partnership with other agencies to reduce local flooding. The Council acted appropriately to support Mr X and Mr Y to try and resolve the matter. The water company delayed in confirming the outcome of its investigation, which meant repair work could not progress. However, the actions of the water company are out of our jurisdiction so I cannot make a finding on this.

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Final decision

37. I have discontinued this investigation. The substantive matter complained about is out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman