Summary: We will not investigate this complaint about rainwater run-off from highways on council land. It is reasonable for the complainant to seek a remedy by way of an insurance claim and the courts if no liability is accepted by the Council.

The complaint

1. Mr X complained about the Council’s failure to properly drain adopted and unadopted highways on its land. As a result, he says run-off from the Council’s land causes damage to his property and drainage. He wants the Council to accept responsibility for properly draining the highways.

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The Ombudsman’s role and powers

2. 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

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

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My assessment

5. Mr X says water run-off from highways on land owned by the Council causes his own drainage to be overwhelmed during heavy rainfall. He asked the Council to install adequate drainage on the roads on its land but it will not do so.
6. He made a complaint to the Council about its failure to drain its land and it refused to accept the complaint under its complaints procedure because it told him that this is a legal matter and he should make a claim against the Council if he believes it to be negligent.
7. Councils as highway authorities have a duty to keep highway surfaces clear of flooding by providing adequate drainage to ensure that traffic and pedestrians are not obstructed. This duty under the Highways Act 1980 does not extend to drainage of adjacent private land. If a landowner is affected by run-off from a highway, they should submit a claim against the Council.
8. The Ombudsman cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint and passed on to its insurers or legal team for a response on liability.
9. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused harm or if the council is liable to pay “damages” for the loss or injury someone has suffered.

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Final decision

10. We will not investigate this complaint about rainwater run-off from highways on council land. It is reasonable for the complainant to seek a remedy by way of an insurance claim and the courts if no liability is accepted by the Council.

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Investigator's decision on behalf of the Ombudsman