Drainage of two properties was inadequate and Council failed to act on the matter—the Ombudsman determined that the Council had abrogated its responsibilities by failing to act appropriately to deal with the problem—Council agreed to do the remedial work following the Ombudsman’s inquiries
Two property owners complained that a Council had failed to take action to remedy severe and chronic drainage problems on their properties. The complainants said that the Council had been involved for at least four years in various attempts to solve the problem, but that they believed the Council was now prepared to do nothing further, although the problem remained unchanged.
The drainage problem was a difficult one. The topography of the area meant that some properties were liable to ponding, and the inadequate drain that caused the problem ran through several properties. On some properties, including those of the complainants, the problems with ponding and poor drainage were worse than on others. However, those who had most problems were dependent upon those who had least to carry out the work necessary to ensure that the whole length of the drainage system was effective.
The Council explained that it had the power under a local Act to ‘execute, do or cause to be done’ by property owners any work necessary to either cleanse and make efficient a drain, widen and improve a drain, or construct a new drain or outfall. It also explained that it had been active under these powers since 1984 when a public meeting had called upon the Council to take ameliorative action. Accordingly the Council had issued notices under the Act, advising property owners that if they failed within one month to carry out the work required to upgrade the drain, the Council would itself carry out the work and recover the cost from the individual property owner.
Nevertheless, when not all the property owners did the required work and tests showed that the drain was still ineffective, no action was taken by the Council. It was then discovered that the procedures for issuing the notices had been inadequate and that the whole procedure would have to be set afoot again from the beginning.
One of the complainants therefore formally applied to the Council for action under the Act, and a special drainage committee was constituted which finally heard the issue in August 1986. Again notices were issued requiring work, or threatening action by the Council at the cost of the property owner. Again not all property owners did the work. Finally, nearly one year after the drainage committee heard the matter, the Council had some excavations done on one property and issued further notices to two other property owners requiring works. The works were not done, and the Council took no further action for another year. In July 1988 it issued yet further notices to these two property owners. They still took no action and in April 1989 the complainants were exasperated to be told by the Council that progress was ‘presently static’ and that although the Council was regularly ‘prompting property owners of their responsibilities’ this was ‘unfortunately without response’.
The Ombudsman formed a preliminary opinion that the Council had abrogated its responsibilities in this affair. It had issued notices declaring that it could and would act, but except in respect of one property, it had not acted. It had apparently come to accept that its responsibilities were confined to prompting property owners to act, but in effect it accepted the situation when they did not.
After the Council was notified of the Ombudsman’s views, it decided to convene a meeting of affected property owners to discuss the opinion and to decide upon some solution to the problem. From this discussion it emerged that the two property owners who had taken no action believed their works would be ineffective without substantial upgrading of the outfall for the drain on the property furthest downstream. Although this was a new issue, the meeting generally agreed that this was at the heart of the problem.
The Council then proposed that it should carry the cost of the work, and that efforts should be put into persuading the property owner to agree to the work on this basis or legal action should be taken to ensure that the work went ahead. In return the two other property owners should give written guarantees that they would carry out the required works.
As the Council informed the Ombudsman that steps were immediately being taken to ensure that this plan was put into effect, the Ombudsman considered that a satisfactory resolution to the complaint had been arrived at and the investigation was discontinued.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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