Summary: We will not investigate this complaint about the Council’s response to a complaint about water pooling on the road outside Mr X’s home due to allegedly defective works by the builder. The Council does not act as clerk of works and its role does not involve protecting the interests of an individual against defective works. Mr X has a right to take court action against the builder it would be reasonable to use, or against the Council if he considers the pooling is the result of an unrepaired defect in the road surface.

The complaint

1. Mr X complains the Council failed to act to require the builder of his property to remedy a defect in surface water drainage that causes pooling where his drive meets the road outside his property.

Back to top

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)

Back to top

How I considered this complaint

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

Back to top

My assessment

6. The Council does not act as clerk of works during construction, and its signing off for the purposes of building control is intended to protect the public against dangerous structures rather than to protect the interests of any individual. It is thus possible for a defect of construction to exist in a development that has passed building control. It would be reasonable for Mr X to take court action against the builder if he considers the pooling he reports is the result of defective work that the builder declines to remedy. That the builder may say the Council has passed the works does not mean they were guaranteed against defects by the Council.
7. If Mr X considers the pooling is the result of poor road maintenance by the Council, he would have the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring the highway up to standard.
8. Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for him to go to court and so we would not investigate.

Back to top

Final decision

9. We will not investigate this complaint because it is reasonable for the complainant to go to court.

Back to top

Investigator's decision on behalf of the Ombudsman