Summary: We will not investigate this complaint about the Council’s failure to enforce drainage improvements on a neighbour’s property. There is insufficient evidence of fault which would warrant an investigation. Mrs X could seek a civil remedy in the courts if she believes the drainage poses a risk to her property.

The complaint

1. Mrs X complained about the Council not pursuing her neighbour to remove culverting of drains on their land. She says the drains are prone to flooding and that the Council required their culvert removal but then changed its view. She wants the Council to enforce the removal of the rest of the culvert so that the normal watercourse is restored.

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The Ombudsman’s role and powers

2. 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. 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

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

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My assessment

6. Mrs X says she reported flooding risks caused by her neighbour culverting a natural watercourse on their land which leads to quicker run off and flooding in severe weather. She asked the Council as flooding authority to make her neighbour restore the culverted drainage to its original status.
7. The Council investigated the site and told the neighbour that they should remove the culverting. The neighbour removed the culverting at the front of the property but did not remove it at the back. The Council told Mrs X that it is satisfied that the remaining culverting does not present a local flood risk. It has accepted the remaining culvert as ‘unconsented land drainage works’ because the legislation does not allow it to give retrospective consent.
8. However, it says that if this were possible it would give consent to the remaining drainage. Mrs X remains dissatisfied with the drainage and says that the Council has given tacit approval to works which could endanger her land. The Council has advised her to seek a civil remedy against her neighbour in the courts.
9. We will not investigate this complaint. The Council as flooding authority has considered the matter and its engineers have assessed the site. It is satisfied with the remaining drainage layout and Mrs X has a legal remedy against her neighbour if she remains concerned.
10. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.

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Final decision

11. We will not investigate this complaint about the Council’s failure to enforce drainage improvements on a neighbour’s property. There is insufficient evidence of fault which would warrant an investigation. Mrs X could seek a civil remedy in the courts if she believes the drainage poses a risk to her property.

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Investigator's decision on behalf of the Ombudsman