Summary: Mr X says the Council did not ask a developer to survey a proposed drainage system before it granted planning permission for the development. No further action is needed to pursue this complaint because Mr X can use an alternative remedy and it is reasonable to expect him to do so.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council did not ask a developer to survey a proposed drainage system before it granted planning permission for the development.
2. Mr X’s home has been flooded six times since the development was built. Mr X says a drain that receives surface water run off from the development runs beneath his home and this drain is not able to deal with the volume of water entering the system when there is heavy rainfall. Mr X contends that had the drainage system been properly surveyed before commencement of the development it would have been clear that the proposed system could not deal with the volumes of water it now has to deal with.
3. Mr X has tried to resolve the matter with the Council for over 18 months to no avail. He has spent over £2000 in legal and professional fees and would like these costs to be reimbursed.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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

6. I examined the complaint and background information provided by Mr X and the Council. I checked the Ombudsman’s guidance on jurisdiction. I provided Mr X and the Council with my initial thoughts on the complaint. I considered Mr X’s comments on my draft decision statement.

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What I found

7. Section 26 (6) of the Local Government Act 1974 (as amended) states:

A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say-

(a)   any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment;

(b)   any action in respect of which the person aggrieved has or had a right of appeal to a Minister of the Crown or the National Assembly for Wales; or

(c)   any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law:

Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort or have resorted to it.

8. Mr X has an alternative remedy available under section 26(6)(C) because he can institute legal proceedings against the Council. I find it is reasonable to expect him to do so because his complaint involves damage to his property. In complaints which allege property damage through fault by a council, the Ombudsman expects complainants to protect their proprietary rights through action in the courts. The courts are also better placed to resolve matters of property damage through negligence and to award the appropriate damages rather than the Ombudsman.
9. I note that the alternative remedy may not provide a complete remedy for all of Mr X’s grievance. Mr X, for instance, is dissatisfied with delays in the Council’s responses to his queries and the adequacy of the Council’s responses to date. It may be that a court would not take these matters into account. However, the fact that an alternative remedy may not provide a complete or substantially complete remedy for all the matters complained of does not bring the complaint within the jurisdiction of the Ombudsman.

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Final decision

10. No further action is required on this complaint as Mr X has an alternative remedy available against the Council. He can use this remedy and it is reasonable to expect him to do so.

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Investigator's decision on behalf of the Ombudsman