Summary: Mrs R complains about Council road works on a high street pavement during the night. She says she booked accommodation to attend a work placement for the one week the works were being undertaken. She says this impacted on her sleep and ability to perform well at work. We found the Council has a legal duty to maintain and repair public highways. In this case, it was reasonably necessary for the works to be completed during the night. I acknowledge that this likely impacted on Mrs R, but that does not mean the Council was at fault. The complaint is not upheld.

The complaint

1. The complainant, who I refer to as Mrs R, is making a complaint in relation to noise caused by building works organised by the Council. Mrs R was staying at a guest house for one week to attend a work placement and she says the noise, which occurred only at night, impacted on her sleep and ability to perform at work. As a desired outcome, Miss wants the Council to reimburse her accommodation and travels costs. She also wants a gesture of goodwill payment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. If, following an investigation, we are satisfied with an organisation’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).
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).

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How I considered this complaint

4. I read Mrs R’s complaint to the Council and Ombudsman. I have also had regard to the responses by the Council, supporting documents and applicable legislation. I invited both Mrs R and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.

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My findings

Background and legislative framework

5. The Council, as a highway authority, has a legal duty to maintain all its highways that are maintainable at public expense (Highways Act 1980 s41.)  It also covers a highway authority’s duty to repair those highways when that becomes necessary. There are no statutes or regulations prescribing the standards to which highways authorities should maintain highways. In the case of Rider v Rider (1973) in the Court of Appeal, Lord Justice Sachs said the highway authority’s legal duty:

“is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them.”

What happened

6. The Council has been undertaking works as part of a town square and high street improvement scheme. The works in question involved the cleaning and sealing of road paving following completion of the resurfacing works. The building contractors working on behalf of the Council split the works into manageable sections for the duration of the project.
7. The night-time works took place from 20 June to 26 June 2022 between the hours of 6pm and 6am. During this time, Mrs R was staying at a guest house on the road subject to the works. Subsequently, Mrs R made a formal complaint to the Council. She said the noise had heavily impacted on her ability to sleep and that she had, in effect, wasted her money booking the accommodation. She asked to be reimbursed for her accommodation, as well as travel costs. The Council declined to do so on the basis the works were necessary.

My assessment

8. I fully acknowledge the impact the building works had on Mrs R. However, there is no fault in this case. The Council has a legal duty to maintain public highways. The Council has explained that works of this nature cannot be completed during to the day due to the need for the area to be kept clean and sealed and allowed to dry without use. In addition, if the works were to be completed during the day, there would be major disruption to the many high street users’ pedestrians, businesses and market traders, as well as restricted access to premises. I recognise Mrs R says the works could have been completed late morning or early evening. However, the Council did consider when the works would cause less disruption and I have no authority to question the merits of its decision. As there is no fault in this case, I cannot assess any injustice to Mrs R, or recommend reimbursement of her costs.

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Final decision

9. The Council has a duty to repair public highways and in the case of the works in question, it was reasonably necessary for these to be completed during the night. I acknowledge that this likely impacted on Mrs R, but that does not mean the Council was at fault. The complaint is not upheld.

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Investigator's decision on behalf of the Ombudsman