Summary: We will not investigate this complaint about the Council’s refusal to accept liability for repairing a retaining structure next to a road. Only the courts can decide who is responsible for its repair.

The complaint

1. Mrs X complains on behalf of the residents’ management company for the road where she lives.
2. She says the Council has refused to accept liability for repair of a retaining structure between the road where she lives and a major trunk road.

Back to top

The Ombudsman’s role and powers

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

Back to top

How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. It does not appear to be in dispute the structure in question is next to an adopted road and sits on land owned by the management company. Mrs X says for the company, however, the structure was included in the Council’s adoption of the road under section 38 of the Highways Act 1980 so it is part of the highway. The Council disputes this and says it is not part of the highway but the responsibility of the management company’s land.
8. Section 328 of the 1980 Act defines ‘highway’ as the whole or any part of a highway. So if Mrs X and the management company consider the structure is part of the highway it is open to them to follow the procedure in section 56 of the Act, which leads to them being able to apply to the magistrates’ court for an order as to its repair.
9. We cannot resolve a dispute about who is responsible for maintaining or repairing this retaining structure, only the courts can. And as the Council disputes whether it is part of the highway, rather than it not having considered the matter, it would be reasonable for Mrs X and the management company to follow the procedure in the 1980 Act to resolve the dispute.

Back to top

Final decision

10. We will not investigate Mrs X’s complaint because only the courts can decide who is responsible for maintaining and repairing the retaining structure in dispute.

Back to top

Investigator's decision on behalf of the Ombudsman