Summary: We will not investigate this complaint about ownership of a blocked drain beneath the pavement outside the complainant’s home. It is reasonable for the complainant to seek a decision from the courts about ownership of the land and consequent responsibility for the drain.

The complaint

1. The complainant, I shall call Mrs X, complains the Council refuses to repair a blocked field drain under the pavement outside her home. She believes she has established the Council owns the land, as it inherited ownership from the previous rural, then district councils.
2. Mrs X wants the Council to accept that it owns the road outside her home and fix the drain.
3. Mrs X also complains about failures with the Council’s complaints system.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X says the Council inherited ownership of the pavement and road outside her home from previous local authorities which no longer exist. She says it is therefore responsible for repairing the blocked field drain under the pavement. The blocked drain causes excess water flowing over the pavement outside her home. She has provided the Council with copies of deeds and historic maps.
9. In response to my enquiries the Council says it has “robustly reviewed all the historical and current evidence available”. This includes the information provided by Mrs X. It says the evidence shows:
• the land in question does not form part of the Council’s estate
• The highway drainage in the area does not connect to the block drain in question
• The drain is not a highway drain and is therefore not the Council’s responsibility
• The Council only owns the actual highway, not the subsoil beneath
10. The Ombudsman cannot determine ownership of land. We can, however, look at how the Council came to its decision. In this case the Council has confirmed it has reviewed all available, relevant information, including that provided by Mrs X. Therefore, I consider it is reasonable for Mrs X to seek a remedy in the courts to resolve the question of ownership of the road.
11. Mrs X also complains about failure in the Council’s complaints system. However, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. We would suggest however, the Council checks its online complaints system. This is to ensure complainants are advised if a complaint is cancelled if there is an error such as exceeding the maximum word count.
     

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Final decision

12. I will not investigate this complaint. This is because we cannot establish who owns the road, this is a matter for the courts.

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Investigator's decision on behalf of the Ombudsman