Decision : Not upheld
Decision date : 08 Jan 2021
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s failure to properly maintain a culvert which he says has resulted in flooding to his mother, Mrs Y’s property. There is no evidence of fault by the Council. It is open to Mrs Y to submit a legal claim for any flooding she believes is caused by the Council’s negligence
- Mr X complains on behalf of his mother, Mrs Y that the Council has failed to maintain a culvert which runs alongside her property and the highway. He says in severe rainfall the culvert screen becomes blocked and results in flooding. This causes Mrs Y worry and frustration. He wants the Council to clear the screens more regularly and to upgrade the culvert. He says this was suggested by an engineer who visited the site last year.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- 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)
How I considered this complaint
- I have considered all the information which Mr X submitted with his complaint and the Council’s response to my enquiries. I have spoken to a Council officer about the culvert.
- I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching the final decision.
What I found
The relevant law
- 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.
- Mrs Y lives next to a culvert which is Council owned. The Council is responsible for maintaining the culvert as part of a highway drainage system. The Council’s records show Mrs Y contacted the Council twice in 2018 (in April and December) and twice in 2019 (October and December) to report the culvert as blocked and asked the Council to clear it. The records show it responded to the requests.
- In October 2019 Mr X complained to the Council, on Mrs Y’s behalf, that the Council had failed to assist Mrs Y in keeping the trash screen cleared. He said the Council had committed to clear it on a two weekly basis but was not doing so. He said Mrs Y’s neighbours blamed her for flooding and this was unfair because the culvert was the Council’s responsibility. Mr X said a Council officer visited Mrs Y in early 2019 and after inspecting the culvert told her that it was inadequate.
- The Council responded to Mr X in November 2019. It denied committing to inspect the trash screen fortnightly. It said it would not have the capacity to check all screens it maintained that frequently. It said it was setting up regular inspections of trash screens using a priority-based approach. It said it would inspect high risk screens monthly, medium risk ones every three months and low risk ones every 12 months. It thought it unlikely the trash screen near Mrs Y’s property would be considered high risk. It said the team had attended and inspected the trash screen in October 2019 and noted no problems.
- Mr X responded in November 2019. He said the trash screen was clear when the Council visited because he had cleared the debris to release the water. Another relative had then cleared it during November. Mr X said the evidence was clear that the screen got blocked after heavy rainfall. He considered the Council should visit in line with this. He suggested the Council consider re-routing the water.
- The Council responded at the second stage of its complaints’ procedure in December 2019. It reiterated that it was working to set up regular inspections of trash screens but could not change the frequency of the cleaning of the screen near Mrs Y’s house.
- Mr X wrote to the Council in February 2020 to report the trash screen had failed again. It had blocked causing water to pour onto Mrs Y’s driveway. Mr X and other relatives cleared the blockage. Mr X says Council workers turned up three days later and said they had complained to the department that the overflow pipe was too small and was not periodically cleaned out. Mr X requested a visit by a specialist.
- Mr X remained unhappy and complained to the Ombudsman.
- The Council, as highway authority, has a duty to is ensure that the public highway is kept clear for traffic. Highway authorities have no statutory duty to adjacent landowners who can submit legal claims for negligence if their property is affected by run-off or flooding. If the Council failed to keep the highway maintained and flood-free it may be failing in its statutory duty.
- Mr X says an officer visited and said the culvert was inadequate. The Council says it has no record of an officer visiting Mrs Y in early 2019 or of any officer reporting the culvert as inadequate. It also says it has no records of workers raising issues about the culvert. I cannot now establish who spoke to Mrs Y and what their role was so cannot investigate this further.
- The Council has provided evidence to show it is working on, but has yet to determine, an inspection regime for its culverts. It expects this to be in place in early 2021. It says its plans suggest this culvert will be inspected annually. It is for the Council, not the Ombudsman, to decide how often it inspects the culvert and trash screen. I would expect it to take into account Mr X’s concerns and the reports it has received about the flooding in deciding how often to inspect the culvert.
- The Council has provided me with records which show between April 2018 and October 2020 it received five reports of the culvert being blocked. As owner of the culvert, the Council has responsibility for keeping the culvert clear and to act appropriately to prevent flooding. We would expect the Council to respond to any report of a blockage and it has done this. Mr X says he and family have to regularly clear the culvert. However, I have seen no evidence the Council has failed to respond when it received reports the culvert was blocked so I cannot be critical of the Council.
- In response to my enquiries the Council says it is satisfied the culvert is adequate. It says it has no records or reports of the culvert flooding properties, only potential road flooding. Mrs Y can submit a legal claim for any nuisance, damage or flooding which she believes is caused by the Council’s negligence or its failure to keep the culvert clear. The Ombudsman cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
- There is no evidence of fault by the Council. If Mr X believes the Council’s actions are negligent it is open to him to take legal action.
Investigator's decision on behalf of the Ombudsman