Summary: We will not investigate this complaint about the Council approving a dropped kerb application and rainwater flooding Mr X’s property. This is mainly because it is reasonable to expect Mr X to take court action.

The complaint

1. Mr X complains the Council agreed to his neighbour installing a dropped kerb larger than the Council’s policy usually allows. Mr X says this resulted in extra rainwater running onto the road and from there into his property when the storm drain on the road outside his house could not cope with the extra water.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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

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

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My assessment

6. The complaint is really a claim of damage to Mr X’s property from the Council’s alleged negligence in allowing the dropped kerb and the claimed resulting increased water runoff. The courts can consider that, so the restriction in paragraph 3 applies to this point. Questions about whether negligence happened, and liability and compensation for any such negligence, are not necessarily straightforward legally. Here, there might be arguments about whether the neighbour, the Council, or both, is at fault. There could also be arguments about whether any legal drainage rights exist onto the road or from the road onto Mr X’s property. It is properly for the courts rather than us to decide such questions. It is unlikely we could decide such points if we tried to investigate.
7. The Highways Act 1980 places a duty on the Council to maintain public highways, including the drains which serve and run beneath them. If Mr X considers the Council has failed to maintain a highway it is responsible for, including the drainage and footpath, he can serve notice on the Council and then apply to the magistrates’ court for an order under section 56 of the Highways Act 1980. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. The law also allows the Council a special defence in some cases about highway disrepair. So, in fairness to the Council, court action is the appropriate way to pursue this point. Also, unlike the Ombudsman, the court can order the Council to do work. Therefore, it is reasonable to expect Mr X to take court action regarding the alleged disrepair of the drainage.
8. There might be some cost to court action. However, that does not necessarily mean it is unreasonable to take court action. Mr X could make an insurance claim first and his insurer might help with legal costs. There is often financial assistance to those on a low income and reasonable adjustments can be made if necessary. It is therefore reasonable to expect Mr X to take court action if he wants a decision on this point.
9. Mr X says more water runs off the property with the new dropped kerb because of the installation of hardstanding on what was previously garden. Devon County Council has no control over that.
10. Mr X says the footway near the new dropped kerb is the wrong gradient. I do not consider that causes Mr X significant enough injustice to warrant us devoting time and public money to investigating this point.
11. Mr X complains the Council at first wrongly told him it had not approved the dropped kerb. The Council later corrected this. We could not achieve more on this point. It would also be disproportionate to pursue this point when we are not investigating the main substantive matter.

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Final decision

12. We will not investigate Mr X’s complaint. It is reasonable to expect him to take court action about the flooding and the highway’s state of repair. It is unlikely we could decide the relevant points. The installation of hardstanding is not the Council’s responsibility. The footways gradient does not disadvantage Mr X significantly enough to warrant us investigating. We could not achieve more on the point about the Council giving wrong information.

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Investigator's decision on behalf of the Ombudsman