Summary: We will not investigate this complaint about highway maintenance and drainage issues. This is because the courts are better placed to consider the matter.

The complaint

1. Mr Y complained the Council has failed to maintain and routinely clear debris from the drainage for a bridge which adjoins his land, which he says has led to flooding in his village.
2. Mr Y says several homes in his village have been flooded as a result of the blocked drainage, and he has repeatedly cleared his part of the drain as a riparian owner, but feels his time, effort and money has been wasted when the Council has not acted to clear the part, he believes it is responsible for.

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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 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 Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

5. Mr Y’s land adjoins a bridge belonging to the Council which crosses over a stream. The Council agrees it owns the bridge and said it is responsible for clearing silt which has built up within the structure, but says it is not responsible for clearing the drainage next to this.
6. The Council says this is the responsibility of the riparian owners, to keep the drainage clear and flowing under the bridge. Mr Y is one of the riparian owners and disagrees with the Council’s position, saying that the Council had repeatedly cleared the area prior to 2018 and had only recently not completed the work when asked. He also says the Council had previously agreed to carry out work if Mr Y cleared part of the drainage, but when he did, the Council did not act before another storm meant the drain was again filled.
7. Consequently, there is a dispute over the responsibilities owed by Mr Y and other riparian owners, and the Council. Without a decision on the extent of the duty specifically the Council has we would be unable to determine fault or not.
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. This includes that we are not able to decide land disputes, such as in this case, and we are unable to determine what rights or responsibilities a person, or the Council has over land. This is something only the courts can decide, and we cannot. Consequently, the court is better placed than we are to consider this complaint. Therefore, we will not investigate.
9. Further, Mr Y has mentioned that, in his view, the drainage issue means that the Council is failing to meet its responsibilities as the Highways Authority for the area in maintaining the bridge and its drainage.
10. Mr Y is correct in saying that the Council, as a local highways authority, has a statutory duty to maintain adopted streets. But, the level of maintenance is not set out in law and is open to interpretation.
11. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
12. Mr Y may try to use this process to try to get the Council to carry out any maintenance works to the drainage from the highway over the bridge. We cannot say whether or not this would be successful as this would be a decision for the court. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

13. We will not investigate Mr Y’s complaint because the courts are better placed to consider the matter.

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Investigator's decision on behalf of the Ombudsman