Summary: We will not investigate this complaint about failure to deal with a blocked drain and breaches of planning control. We have not seen enough evidence of fault in the way the Council considered these matters.

The complaint

1. Mr X complains the Council refuses to resolve a drain blockage caused by his neighbour. He says the Council blocked a highway gully which made matters worse and damaged his property.
2. He also complains the Council has:
• Delayed responding to his complaint.
• Failed to deal with his complaint about related breaches of planning control.
• Failed to respond to freedom of information requests in time.

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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 not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, 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, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X told the Council his garden was flooding because a neighbour had blocked or altered the outfall of a drain on the boundary of their properties.
7. The Council advised Mr X it does not own the drain, and it is shown on historic maps as a land drain. However, it decided to block a highway drain to try and reduce surface water flowing into the drain and thereby reduce the flooding issue. This did not work, and Mr X says made matters worse.
8. Mr X complained the Council had failed to resolve the issue of the blocked drain.
9. The Council says it investigated the matter and confirms:
• The drain on Mr X’s boundary is a private land drain. The Council will not carry out remedial work to address a blockage in a private drain even if it can discharge water into the private drain from the highway.
• It apologised for the delay in dealing with Mr X’s complaint or providing him with regular updates.
• It apologised for the delay in reinstating the highway gulley which it had blocked to try to reduce the amount of water flowing into the private land drain.
• It decided intermittent episodes of flooding from an obstructed water course did not constitute a statutory nuisance.
• It considered it was not expedient to take action against the reported breaches of planning control.
10. The Ombudsman cannot establish the ownership of the drain, nor can we decide if there is a statutory nuisance. Our role is to consider whether there was fault in the way the Council made these decisions. From the information I have seen, there is not enough evidence that the Council failed to investigate the ownership of the land drain. Nor is there enough evidence to show the Council has not considered Mr X’s concerns before deciding there is not a statutory nuisance.
11. The Council has acknowledged its attempt to reduce the amount of water flowing into the land drain by blocking a highway gulley was unsuccessful and it has reversed the work. We cannot determine liability claims for damage to property, nor can we award compensation or damages. These are legal claims which the courts are better placed to consider. 
12. The Council has advised it has considered Mr X’s reports of breaches of planning control at his neighbour’s property. It has decided it is not expedient to take enforcement action. Having considered the breaches, this is a decision the Council is entitled to make.
13. The Information Commissioner’s Office (ICO) deals with complaints about failures to follow the Freedom of Information Act. It is reasonable to expect Mr X to complain to the ICO about the Council’s delays in responding to his requests for information.
14. Finally, the Council has apologised for the delay in dealing with Mr X’s complaint. We will not usually investigate failures in the complaint procedure alone as we do not consider this to be a good use of public resources when we are not investigating the substantive issue.

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Final decision

15. We will not investigate Mr X’s complaint because:
• We have not seen enough evidence of fault in the way the Council considered the reports of breaches of planning control and a statutory nuisance.
• We cannot establish ownership of the land drain or whether there is a statutory nuisance.
• We cannot decide whether the Council is responsible for damage to Mr X’s property.
• The ICO is better placed to consider complaints about freedom of information.
• Given that we are not investigating the substantive issues, I do not consider it would be a good use of public resources to investigate a complaint about the complaints process. I am therefore exercising my general discretion to not investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman