East Sussex County Council (15 016 173)

Category : Transport and highways > Highway adoption

Decision : Not upheld

Decision date : 31 Aug 2016

The Ombudsman's final decision:

Summary: There is no or insufficient evidence the Council acted with fault in its design or location of a pedestrian footway outside the complainant’s home. It has responded suitably to specific concerns raised by the complainant about land ownership, construction of the footway and drainage issues post-construction.

The complaint

  1. The complainant, whom I have called ‘Ms E’, complains about a highway improvement scheme undertaken outside her house. Ms E lives in a small community in the Council’s area. Her house is on the junction of a main road (an ‘A’ road) and an unclassified lane which leads to a nearby village hall and beyond. In 2015 the Council and its contractors, acting in partnership with the local Parish Council, built a pedestrian footway from the corner of the ‘A’ road, along the lane, to the village hall. Ms E complains the Council:
  • did not ensure enough consultation took place about the highway scheme;
  • built the footway on the same side of the lane as her house; it could have built the pathway on the opposite side of the lane causing less disruption to households;
  • in building the footway next to her house, it replaced an area of grass verge and then crossed the end of her driveway; Ms E does not consider the verge or driveway formed part of a public highway but her own private land;
  • communicated poorly through the duration of the works and afterwards;
  • built the footway in such a way to cause more water to enter her garden causing damage to a hedge and a wood store.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about county councils and certain other bodies. She cannot investigate the actions of parish councils. (Local Government Act 1974, sections 25 and 34A)
  2. Where an individual, organisation or private company is providing services on behalf of a council, the Ombudsman can investigate complaints about the action of these providers. (Local Government Act 1974, section 25(7))
  3. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  4. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. Before completing my investigation into this complaint I considered:
  • Ms E’s written complaint to the Ombudsman and supporting information including that provided in a telephone conversation and emails;
  • correspondence exchanged between Ms E and the Council before she made her complaint to the Ombudsman;
  • information provided by the Council in response to written enquiries;
  • relevant law as referred to in the text below;
  • comments made by Ms E in response to a draft decision setting out my thinking about her complaint (the Council also had chance to comment on this).

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What I found

  1. I considered each part of Ms E’s complaint in turn. I noted the highway works at the crux of the complaint were not initiated by the Council. Instead Ms E’s local parish council approached it for help in designing and financing a pedestrian footway along the lane where Ms E lives.
  2. The approach was for help under “community match” funding. In brief this is a scheme where parishes can approach the Council for help with highway improvements. Eligible schemes are those which a parish or town council considers important but which the Council has not prioritised to fund from its highway budget. The local parish or town council must provide half the funding for the scheme. Then the County will ‘match’ that spending from its own funds.
  3. Before any scheme proceeds a Council engineer will first consider if the proposed scheme is feasible and calculate a budget. If the scheme advances then the Council will oversee the work which its contractors will undertake. But the local parish council is responsible for any publicity for the scheme.
  4. As noted at paragraph 2, the Ombudsman has no power to investigate the actions of parish councils. Ms E complained the consultation by the parish council in this case was inadequate as she received no details about the scheme in writing. She also described a Parish Councillor being rude and unhelpful to her when she queried the scope of the scheme.
  5. I did not consider I could take a view on these matters, because the quality of the consultation carried out was a matter for the local parish. However, I noted the Council stresses the importance of consultation. A leaflet explaining ‘community match’ projects says this is “most important”. It also says that parish councils should produce a report detailing their consultation and findings. But it is unclear if the Council audits or monitors this apparent requirement for such schemes. Possibly there is room for improvement in the Council’s monitoring of such schemes in the future. However, I noted that in this case the parish had made the Council aware of what consultation it carried out through a series of emails.
  6. I recognised Ms E had a concern that when she became aware of the plans, the scheme appeared to her as a ‘fait accompli’. But this is consistent with most highway improvements. Because any public authority can only effectively consult on a scheme when it knows that its construction is feasible, affordable and can offer some specific detail to households directly affected. And before it decides those matters the authority will have already come to a view that such a scheme is also desirable.
  7. I noted the parish made the Council aware of some specific concerns Ms E had about the works before they began. In particular the project first proposed that to fit highway drains to run under the footway, contractors would remove a portion of Ms E’s driveway laid to block paving. If Ms E wanted that section replaced with block paving rather than tarmac then the suggestion was she would have to pay for that. But after learning of Ms E’s objection to this proposal, the Council amended the scheme to divert the highway drainage away from her drive. This leads me to find the Council listened to the concerns raised by Ms E (via the parish) and reacted reasonably.
  8. In summary therefore, I cannot pass comment on the parish consultation and can make no criticism of the Council It knew Ms E was aware of the scheme before it began. It also knew of her concerns about the design and listened and responded properly to those concerns. So I find it did all I could reasonably expect during the consultation phase of the project.

The complaints about the scope of the works

  1. I looked next at the location of the footway. I asked the Council why its engineer decided it should be on the side of the lane where Ms E lives. The Council explained that it was easier and more cost-effective to build the lane on the side of the lane where it did. To build on the opposite side would have meant more costs due to a ditch and various service cables.
  2. As I explained at paragraph 4 above my role is not to take issue with the Council’s decision unless there is evidence it took that decision with fault. In this case I consider the Council has only taken account of relevant considerations in deciding which side of the lane to build the footway and not relied on any irrelevant considerations. Consequently I cannot say this is a decision taken with fault. Ms E might disagree with the Council’s choice of location, but that would not be enough for me to find fault with it.
  3. The next issue to consider was whether it was right for the Council to construct the footway around the edge of Ms E’s property. This meant replacing the grass verge and using the end of the driveway as part of the footway. Ms E contends this is wrong. The land registry title to her home shows that her land extends to cover all of the paved area and the former verge. So the Council is wrong to treat that as part of the highway.
  4. This was the subject of lengthy correspondence between Ms E and the Council before I investigated this complaint. I noted that in its replies the Council explained:
  • Section 66 of the Highway Act 1980 allows it to build and maintain a footway on a highway where it “thinks it necessary or desirable”;
  • its analysis of historic Ordnance Survey maps going back to 1909 suggested the highway extended to the end of Ms E’s drive and the verged area; it considered this analysis of historic data consistent with Section 32 of the Highway Act 1980 which considers if a way has been dedicated as a highway;
  • it considered this analysis also fitted to a principle settled in case law of the width of a highway usually being measured “hedgerow to hedgerow” (it gave Ms E references to key cases);
  • that under Section 31 of the Highway Act it could therefore consider the end of the driveway and the grass verge a public right of way and therefore part of the highway;
  • there was no inconsistency in this position and Ms E’s ownership of land; only the surface of the land is highway; what is underneath belongs to the landowner.
  1. I noted Ms E disagreed with some of the above and I understand she has spoken to a legal adviser who expressed some support for her position. However, I saw no evidence which led me to consider the Council was misquoting the relevant legislation or did not consider its position legally sound. I was satisfied it considered and answered all Ms E’s correspondence on the extent of the highway and its ‘right’ to put the footway where it did. I did not consider Ms E’s disagreement with its position gave me grounds to find fault with its decision about the footway’s location.

The complaint about communications

  1. As I noted above the Council entered into lengthy correspondence with Ms E about the footway location. There might on occasion have been some delay in answering correspondence but I did not consider any delay significant enough to justify a finding of fault.
  2. I recognised the distress caused to Ms E with the suggestion early on that the Council might remove part of her block paved drive. But as I explained above this was resolved, as was another issue which arose later when contractors disposed of bricks kept by Ms E but which they subsequently replaced. I did not want to underestimate the annoyance caused to Ms E by such matters. But I considered the resolution achieved in each case meant I could not find fault in how the Council responded.

The complaint about drainage

  1. I accept that in the time since the Council’s contractors completed the footway Ms E’s property has suffered some problems with water entering her land. She considers the footway has contributed to those problems. This is because the footway is higher than the grass verge it replaced. Ms E says that if the highway floods, water will now pass over the footway on to her garden. Previously the verge acted as a soak-away. Ms E says this has contributed to the dying off of a hedge in her garden.
  2. I found the Council constructed the footway with a slight gradient that provides for water to run off the tarmac and into the gutter. It checked to ensure the footway met this standard. So water run-off from the footway should not enter Ms E’s garden. The footway could not be said to cause any flooding problems therefore.
  3. However, I understood Ms E’s concern about what happened if the water rose to the point where it went over the footway. In response to Ms E’s concerns about water pooling in this location, the Council inspected the road drainage serving the lane. In April 2016, it found there was a blocked gully which it arranged to clear. It considered this might have led to more water overflowing into the lane and flowing down towards Ms E’s house. In June 2016, Ms E reported further problems with water flowing from the lane on to her property from the lane. She understands the cause was exceptionally high rainfall overwhelming the highway drainage.
  4. On both occasions therefore the Council had responded to Ms E’s concerns. I accepted however it had perhaps not yet allayed Ms E’s concerns but that was not enough for me to find fault. In the circumstances I could only suggest Ms E continue to report any problems she experiences with water entering her garden to the Council, if that water is flowing from the lane. I would expect the Council to investigate and respond as appropriate in line with its policy.

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Final decision

  1. For the reasons explained above I do not consider Ms E’s complaint can be upheld. I have no or insufficient evidence to find the Council has acted with fault causing her an injustice. So I have completed my investigation satisfied with its actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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