Summary: Mr and Mrs X complain about the Council’s refusal to act to prevent flooding of their property from a culvert which runs under their garden. The Ombudsman will not investigate the complaint because the complainants can use the courts to challenge the Council’s position that it is not responsible for maintaining the culvert.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, say they are very dissatisfied with the Council’s findings in relation to the ownership of an old culvert which runs under their garden and causes flooding of their land. They say they pay enough council tax for the Council to take responsibility and address the problem.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. In considering the complaint I reviewed the information provided by the complainants and gave them the opportunity to comment on my draft decision.

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What I found

5. For the last three years Mr and Mrs X have been in correspondence with the Council about a 16th century culvert which runs under their garden to the nearby river. They say problems with the culvert mean that at times there is an unacceptable amount of water flowing which causes flooding of their land and risks damage to their home.
6. They say when they purchased their property, they were told by the previous owner that they had non-riparian rights to the culvert and only had responsibility for it above ground level.
7. Despite long-running correspondence with the Council about the problem, Mr and Mrs X say they are no nearer to finding out who built the culvert and who is responsible for it. In response to their recent complaint about this matter, the Council has advised that according to the information it has, it is not responsible for maintaining the culvert.
8. In response to other queries raised by the complainants, the Council also explained its responsibilities under the planning process with regard to water drainage and flood risk assessment and that it is planning applicants who have responsibility for managing run off from development sites. It also advised that with regard to an attenuation pond at a nearby development, problems with it are a matter for the builders or management company but are not the responsibility of the Council or any public body.
9. Dissatisfied that the Council will not accept responsibility for maintaining the culvert, Mr and Mrs X complained to the Ombudsman.

Assessment

10. I understand Mr and Mrs X have experienced stress and frustration in seeking to establish that they are not responsible for the maintenance of the culvert under their land and that the Council should act to address the flooding problems.
11. However, determination of the ownership of the culvert, and who is legally responsible for maintaining it, is a matter for the courts and not the Ombudsman. As Mr and Mrs X have an alternative remedy available against the Council by means of court action which we would reasonably expect them to make use of, the complaint falls outside our jurisdiction and will not be investigated.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because the complainants can challenge the Council’s position on legal ownership through the courts.

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Investigator's decision on behalf of the Ombudsman