Summary: There was no fault in the way the Council decided not to take action to deal with surface water running from privately owned land on to an unadopted footpath.

The complaint

1. Miss X works for a company that manages a block of private flats, which I shall refer to as Block A, in the Council’s area.
2. She complains that the Council failed to use its powers, as the highways authority, to investigate and prevent ground water running from a private residential property (“House A”) on to a footpath adjacent to Block A. Miss X says the water on the footpath presents a hazard to residents, particularly in winter when it freezes and the path is icy.
3. Miss X wants the Council to establish the cause of the water run-off and take action to make the footpath safe for pedestrians.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

5. I considered Miss X’s complaint and all the evidence she sent me. I considered the Council’s response to my enquiries.
6. I gave the Council and Mrs X the opportunity to comment on my draft decision.

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What I found

7. The footpath that is the subject of this complaint runs adjacent to land belonging to Block A. It connects a cul de sac of residential houses to a main road. There is a street light on the footpath, concrete bollards at the entrance and a no cycling sign.
8. The Council has provided a map showing the extent of the adopted public highway at this location. It shows the cul de sac and the road adjacent to Block A are adopted public highway. But the footpath is unadopted and so it is not part of the public highway network. The Council has no other records that would establish the landowner responsible for the footpath. The footpath is not part of the land owned by House A or Block A.
9. Due to the natural slope of the land, ground water runs from the garden of House A on to the footpath and then drains away. Miss X says the water freezes on the footpath in winter which makes it icy and hazardous for pedestrians (including the residents of Block A).
10. Miss X says the Council has resurfaced the footpath in the past, cleared weeds and maintains the street light. She does not understand why the Council would use public funds to carry out these works on an unadopted footpath.
11. The Council says it has no record or recollection of carrying out any resurfacing or other works on this footpath. The presence of a street light does not infer any liability to maintain the footpath. It says there are many unadopted footways in its area with public street lighting.
12. The Council carries out gritting on major routes on the public highway network in its area in the winter. But it does not have a duty, and has insufficient resources, to carry out gritting on an unadopted footpath in icy weather conditions.
13. One of the Council’s planning and highways legal officers was asked to consider whether the Council had a duty to take action under the Land Drainage Act 1991 or the Highways Act 1980. She reviewed all the relevant powers and duties. She said the provisions in the Land Drainage Act to serve notices on the landowner do not apply in this case because there is no risk of flooding. She also considered the Council’s duties and powers under the Highways Act 1980 to:
• prevent obstruction of highways;
• deal with surface water on footways;
• prevent the obstruction of a highway due to an accumulation of ice or snow; and
• to construct or lay drains on a highway.
14. The lawyer expressed the view that it would not be appropriate to use public funds to construct a drain when the Council had no liability to maintain this footpath. She did not consider the water run-off was sufficient to engage the other duties under the Highway Act 1980.
15. Between July and October 2018 an officer in the Highways team made several attempts to contact the owner of House A informally to discuss work to mitigate the flow of water on to the footpath. During an initial telephone conversation, the owner of House A indicated a contractor would be visiting the site. But the owner did not respond to the officer’s subsequent telephone messages and letter.
16. The Council has suggested the property management company, or residents of Block A, may wish to get independent legal advice to try to find a way to resolve their concerns. It is willing to offer advice on the installation of a suitable drain if Miss X, or the residents of Block A, can trace the landowner and obtain permission to carry out works.

Analysis

17. I have seen no evidence that the footpath is adopted as part of the public highway network. In these circumstances, the Council has no liability to maintain it or carry out drainage improvement works.
18. Councils have discretionary powers under the Highways Act 1980 to carry out works to footpaths which are not part of the public highway. But there is no obligation for the Council to use public funds to carry out works using these powers in every case. The Council has properly considered whether the water run-off causes a nuisance or obstruction that warrants using these discretionary powers. It decided it is not appropriate to take action on the facts of this case.
19. The Ombudsman 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 it reached the decision. I have seen no evidence of fault in this case.

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Final decision

20. I have completed the investigation and found there was no fault in the way the Council made the decision not to take action to prevent or mitigate ground water running from House A on to the footpath.

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Investigator's decision on behalf of the Ombudsman