Summary: Miss X complained about the Council serving her with a Building Act notice for a drainage misconnection which she denies liability for. We should not exercise discretion to investigate this complaint. This is because it was reasonable for her to appeal against the notice to the Magistrates’ Court if she believed it was inappropriate.

The complaint

1. Miss X complained about receiving a notice under the Building Act 1984 for a drainage misconnection at her property for which she is a leaseholder. She says the freeholder of the site has been negotiating with the Council about liability for the drainage connections and she should not have had to pay for any of the remedial work. She wants the Council to reimburse her for her costs.

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The Ombudsman’s role and powers

2. 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

3. I have considered all the information which Miss X submitted with her complaint. Miss X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Miss X says the leaseholders were informed by the water authority in 2017 that there was a misconnection with the drainage foul water disposal from the site which required resolving to prevent pollution.
5. In February 2020 the Council served a notice under Section 59 of the Building Act 1984 because it said insufficient progress had been made to remedy the problem. Miss X disputes this and says that they carried out the work because of the threat I the notice. She says the costs should be reimbursed because the original developer and the Council which approved the development in 1978 are liable for the defects.
6. The legislation says that the Council must decide who is the liable party when issuing a notice for defective drainage. If Miss X disputes the liability, she could have exercised her right of appeal against the notice to the Magistrates Court under section 102 of the Act. She has the benefit of legal advice in this matter and so it was reasonable for her to appeal.

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Final decision

7. We should not exercise discretion to investigate this complaint. This is because it was reasonable for her to appeal against the notice to the Magistrates’ Court if she believed it was inappropriate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman