Summary: We will not investigate Mr X’s complaint about the Council not doing works to a highway drain system discharging water on to his property, and officers not responding or delaying replies to his correspondence. The core drainage issue is one of legal liability for the highway water and its impacts on Mr X’s property which is a matter only a court or insurer can determine. We do not investigate councils’ complaint responses or correspondence where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mr X lives in a property where the previous Council installed a drain from its highway under his property, to then discharge on to his neighbour’s property. He complains the Council has:
1. refused to do work to repair the drain system;
2. failed to reply to his correspondence.
2. Mr X says in prolonged rainy conditions his property floods. He says the water causes damp to his property’s walls and it has come close to flooding his house. Mr X says he has been unable to have full use of or do works to his garden in the area that floods. He is concerned the situation will affect his property’s value. Mr X wants the Council to:

• accept the drainage system is wholly its responsibility and not fit for purpose;
• take responsibility for the flooding of his property;
• pay to put in a functioning drain to deal with the water off its highway;
• discuss the matter meaningfully with him and his neighbour;
• stop claiming it has a right to use drainage which floods his property.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is no worthwhile outcome achievable by our investigation; and
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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

5. I considered information from Mr X, relevant online maps and the Ombudsman’s Assessment Code.

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My assessment

6. Mr X considers the Council is responsible for the water coming on to his property from its highway land and for its impacts. The Council says its drain is working as designed, clearing away highway water. It says it has a ‘prescriptive’ right to discharge the water into the system under Mr X’s land. The Council states this right has not been the subject of a formal process but created by established and ongoing use. It says it is Mr X’s responsibility to deal with the water passing on to his land. As the water then discharges to his neighbour’s land, the Council considers Mr X may in turn have a ‘prescriptive’ right of his own, which would be a private civil matter between him and his neighbour.
7. The core issues in Mr X’s complaint are of legal liability and responsibility for the highway run-off water, and the impacts it causes to him and his property. This is a question of legal liability. We cannot determine such legal questions nor decide the respective rights of any of the parties involved regarding how the highway water should be dealt with. Investigation of the matter would not provide a worthwhile outcome because it will not provide the decision on liability Mr X seeks. It would be reasonable for Mr X to pursue these issues as a claim with the Council’s insurers and if the claim is refused, to put the matter before a court. That is because only an insurer or the court can determine or rule on legal rights and liability matters. Should a court be required, its ruling would also be binding on all parties, whereas the Ombudsman may only make recommendations.
8. Given we cannot decide on liability here, we also cannot say the Council should make the changes to the current drainage system Mr X wants. We therefore also cannot achieve the practical outcomes Mr X seeks here, which is a further reason why we will not investigate.
9. Mr X complains about the Council not responding to some of his correspondence and complaints on this matter, or delaying in their responses. We do not investigate councils’ or their contractors’ complaint-handling or correspondence in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

10. We will not investigate Mr X’s complaint because:
• we cannot determine the core drainage matter, which is a legal liability issue, so there is no worthwhile outcome achievable from investigation; and
• we do not investigate councils’ or their contractors’ complaint-handling or correspondence where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman