Decision : Not upheld
Decision date : 06 Feb 2019
The Ombudsman's final decision:
Summary: The Ombudsman found no fault by the Council on Mr P’s complaint about it failing to carry out proper repairs to the highway surface and brick culvert running under the entrance to his property. It arranged to jet wash it to clear it but is not responsible for its repair and maintenance. Water entering the ditches mainly comes from fields. There was no evidence the Council carried out works to the culvert or accepted responsibility for it. It carried out some highway repairs.
- Mr P complains the Council, as highways authority, failed to carry out proper repairs to the highway surface and brick culvert which runs beneath the entrance to his property, despite accepting responsibility to do so; as a result, the surface of the entrance was damaged, it is regularly flooded, and he spent time and effort pursuing the Council to do repairs.
The Ombudsman’s role and powers
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
How I considered this complaint
- I considered all the information Mr P sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr P and the Council. I considered the Council’s response.
What I found
- Mr P lives near a 7-metre-wide entrance leading to his and another property. Underneath the entrance is a brick culvert which he says takes surface water from a village across some fields. He accepts the culvert is his responsibility.
- He believes the water authority carried out works to the water supply at the entrance several years ago, during which they damaged the brick culvert. He claimed a Council highways team later repaired the culvert and fitted a pipe. Mr P provided no evidence in support of this claim and nor has the Council any record of such work. Mr P said this pipe eventually blocked causing flooding at the entrance and the road. The flooding damaged the road surface at the entrance.
- Mr P said an officer agreed to carry out repairs and divert water coming from the village if he arranged to clear the pipe. He did not provide evidence of this agreement. Mr P arranged to clear the culvert.
- He complained there is still too much water coming across the fields. Despite attempts to talk to the officer to discuss the problem, Mr P was not told when the Council would carry out repairs. Nor is he happy with the quality of the surface repairs carried out.
- In response to my enquiries the Council confirmed:
- The entrance is not highway land;
- There are a few shallow highway ditches (grips) connecting the road edge to the roadside ditch but the run-off from the highway would only account for 10% of water reaching the culvert. It has full rights to remove water from the highway and place it in to any adjoining land;
- The source of water is mainly the surrounding land. The ditch connecting to the culvert is a land drain system. The road and entrance were damaged by water overflowing the ditch and running down the road as it was not flowing through Mr P’s culvert;
- It accepts no responsibility for water arriving at the culvert;
- It has no evidence it carried out any works on the culvert; and
- The only action it took was to try and clear it by jet washing as a gesture of good will. Its intention was to help Mr P locate and understand whether there was a blockage in his culvert. It carried out some works to fill surface potholes.
- An officer emailed Mr P in February 2018. He referred to a plan to try and place a new section of pipe work to intercept the water before it reached the entrance area. In response to my enquiries, the Council explained the plan was for a future scheme at the north end of the road close to the village. It intended to add a few gullies there and a section of pipe in to a back ditch on the other side of the road.
- At most, this would remove a small amount of highway water falling further along it and have no great impact on water entering his culvert. Schemes are put to a special meeting once a year which looks and prioritises works for the following year. Whether this scheme progresses depends on the budget available.
- Mr P arranged for his own CCTV survey of the culvert. He provided no evidence of this survey’s findings but said it confirmed the fault was with the brickwork and a pipe connected to it which did not line up properly.
- As highway authority, the Council has legal powers to drain the highway or otherwise prevent surface water from flowing on to it (Highways Act 1980). The Highways Act does not mean the Council must prevent water flowing from the highway onto neighbouring land. It has a duty to maintain the highway but a power to drain it. Case law found occasional flooding of the highway does not always mean the Council failed to meet its legal duty. Nor does the law require the complete draining of the highway.
- A ditch on the road side of fences and hedges taking land drainage as well as highway drainage is the responsibility of the ‘riparian owner’. A riparian landowner is the property owner of any watercourse within or adjacent to their property. The owner is responsible for carrying out, at their own expense, any necessary maintenance of it.
- I found no fault on this complaint because:
- The culvert is on Mr P’s land, not the highway. As such, the responsibility for its maintenance rests with Mr P.
- There is no evidence the Council accepted responsibility for the maintenance and repair of the culvert. Indeed, the Council denies any responsibility for it.
- Mr P maintains the problem with the culvert is because of water running across fields to it. This tends to confirm what the Council said that the ditches were part of a land drainage system. Water entering the ditch, and ultimately passing through the culvert from across the fields, is not an issue for the Council to address. This is a private civil matter for Mr P to pursue with the adjoining land owners.
- An email from Mr P to the Council on 20 April 2018 confirmed a firm did a CCTV scan of the culvert which they cleared. Water again passed through it freely. He told the Council the problem with the blockage was initially caused by the water authority installing a mains water supply which affected the brickwork. Again, if this was correct, it was not the Council’s fault.
- His email went on to say a highways team dug down and put a section of pipe in it which created a ridge between it and the culvert. This in turn allowed debris to catch and build up, eventually causing a blockage. The Council has no record of carrying out works on the culvert. There is no evidence showing the Council carried out this work to the culvert as claimed.
- The Council provided a copy of a works order on its computer system showing it raised an order to ‘Rod/Jet’ the area in February 2018. The record shows the works were done the same month.
- The Council also confirmed it never acknowledged any nearby overflowing cesspit contributed to flooding.
- The scheme it referred to about a new section of pipe was not for the culvert’s location but further up the road. It will consider this scheme and what priority, if any, it needs awarding subject to funding.
- The Council carried out some pothole repairs. While these may not be to the standard Mr P would like, those done to the highway allow safe passage.
- The Ombudsman found no fault on Mr P’s complaint against the Council.
Investigator's decision on behalf of the Ombudsman