Decision : Not upheld
Decision date : 11 Jun 2018
The Ombudsman's final decision:
Summary: Ms X complains about the Council’s failure to adopt a road on her housing estate. This affects the value of homes on the estate. The Ombudsman has discontinued the investigation because we cannot investigate late complaints and it is unlikely further investigation will achieve a different outcome.
- Ms X complains for herself and other residents of her housing estate. She says the Council has failed to adopt a road on her housing estate. This affects the value of homes on the estate and means residents pay the costs of maintenance themselves.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I spoke to Ms X and I reviewed the documents provided. I gave Ms X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.
What I found
- The Council is the relevant highway authority in this case.
- If a highway authority adopts a new road it becomes maintainable at public expense.
- Under sections 219 and 220 of the Highways Act 1980 (the “Act”), a highway authority can ensure a developer deposits enough money to cover the cost of making up a road to adoption standard.
- The highways authority needs Buildings Regulations approval from the District Council to do this.
- Alternatively, section 38 of the Act allows a highway authority to reach an agreement with the developer, whereby it will adopt the highway provided it is built to an adoptable standard. The developer deposits a bond that the highway authority can use if the developer fails to complete the work. However, the highway authority cannot force a developer to agree to this.
- In 2013 Ms X complained to the Ombudsman about the District Council’s failure to resolve her dispute about the adoption of the road. The Ombudsman found no fault by the District Council and said Ms X would have to pursue the developer under the contract. The Ombudsman noted Ms X may have a further complaint in certain circumstances. Such as, if the road was not adopted and the absence of a bond meant the matter could not be resolved.
- In 2014 Ms X complained to the Ombudsman about the Council, which was the relevant highway authority. She said it failed to set up a bond under a section 38 agreement. The Ombudsman noted the District Council did not tell the Council once it had granted Building Regulations approval and so the Council could not follow the section 219 procedure. The Ombudsman also found it was not the Council’s fault the developer would not agree to a section 38 agreement.
- In 2015 Ms X complained to the Ombudsman about the District Council’s failure to take proper action in relation the adoption of the road. The Ombudsman found the District Council at fault and, but for these faults the road would have been built to an adoptable standard and the developer could have applied for the road to be adopted. However, the Ombudsman found the District Council should not pay for the works needed to get the road to an adoptable standard.
- The Ombudsman said the role of both councils is to protect the public at large, not the private interests of individual residents. Further, that some of the residents took measures to protect themselves, but the losses and costs that remain for the rest could have been avoided if their solicitors had done what was expected of them.
- Ms X has now provided some further information and she says this affects previous decisions. Namely, the developer recently passed away and, in 2010 the District Council said the residents would not have to pay for the adoption of the road. However, I find this information does not affect previous decisions.
- The last decision was clear that the councils should not have to pay for works to ensure the road is adopted. The Ombudsman pointed out the role of both councils is to protect the public at large, not the private interests of individual residents. I am therefore discontinuing my investigation into this matter as I consider further investigation would not achieve a different outcome.
- Ms X has complained about the Council’s failure to update the list of roads. I am discontinuing my investigation into this matter as it first arose more than 12 months ago and the fault has not caused significant injustice.
- Ms X says the councils’ delays in compiling the list of snags has added to the cost of works needed to complete the road. I am discontinuing my investigation into this matter as it first arose more than 12 months ago. Further and in any event, unless or until the road is adopted I would be unable to assess any injustice arising from any delay.
- I have discontinued my investigation. This is because we cannot investigate late complaints and it is unlikely further investigation will achieve a different outcome.
Investigator's decision on behalf of the Ombudsman