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North Yorkshire County Council (16 011 341)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 28 Mar 2017

The Ombudsman's final decision:

Summary: The Council failed to respond to Mrs Y’s reports of possible disrepair at a flooded ford close to her home. Access to Mrs Y’s property was temporarily obstructed due to deep fast flowing water. The Council accepted this could cause a danger to life, but there is no evidence to show that it responded to the concern. The Council will remedy the injustice this caused with an apology, a financial payment and an inspection of the reportedly blocked pipe work.

The complaint

  1. The complainant, whom I shall call Mrs Y, complains about regular flooding at the access road to her property which the Council is responsible for maintaining. She says the Council has failed to take the appropriate action in response to her reports that the highway is dangerous.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’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)

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How I considered this complaint

  1. I corresponded with Mrs Y by email, and considered any documents she submitted.
  2. I made enquiries of the Council and considered its response.
  3. I consulted the relevant legislation and case law, cited where necessary.
  4. I have written to Mrs Y and the Council with my draft decision and considered their comments.

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What I found

  1. The Highways Act (1980) ‘the Act’ gives the Council both permissive powers and statutory duties. The Council would undertake works to the highway outside Mrs Y’s property using its permissive powers.
  2. Section 41 of the Act makes clear that every local authority has a duty to maintain highways which are maintainable at the public expense. It is accepted that this duty is made more onerous by adverse weather conditions. Section 329 of the Act confirms that “maintenance includes repair”.

What happened

  1. Mrs Y complains about a Council maintained access road which passes over a stream. This road is the only access Mrs Y has to her property. Mrs Y says the stream overflows causing flooding to the road. She says this is dangerous because it is the only access she and her family have to their property.
  2. Some time before Mrs Y moved into her property the Council introduced a raised ford with pipe work across the access road.
  3. In 2013 the Council carried out further works to reinstate the eroded sides of the road and to install a barrier at the edge of the carriageway. However, despite this, Mrs Y says the ford remains ineffective and the Council has not explored all of the options open to it. In response the Council has pointed out that the introduction of a bridge could cost as much as £500,000 and that its duty is only to maintain the road, not improve it.

Inspections

  1. Due to the location and the category of the road, it is inspected once a year in line with the Council’s ‘Highways Inspection Manual’. The Council says the inspection for this road is completed by 6 September each year. It has provided details of inspections carried out in the past three years:
    • 27 Aug 2014 – potholes found on carriageway
    • 7 Aug 2015 – no actionable defects found
    • 25 Aug 2016 – no actionable defects found
  2. I have consulted the manual. The above inspections have been conducted in accordance with this, so I cannot say there is any failure by the Council on this point.

Priority responses

  1. The manual also sets out the timescales in which it aims to respond to reports of disrepair on its highways. The Council has a risk matrix which takes into account the type of road, the probability of risk and potential impact. It uses the matrix to determine how quickly it will respond to reports.
  2. Mrs Y’s road is classed as a ‘4b’ (a local urban access road). In cases of defective drainage on 4b roads, the Council aims to respond to reports within three months.
  3. As well as outlining response times for specific defects, such as potholes and faults with drainage, the manual also considers “anything else considered potentially dangerous” and says that: “...an assessment will be carried out on an individual basis... this will be at the Inspector’s discretion and any hazards found should be assessed using the risk matrix...”

Reports of flooding

  1. I have looked at the Council’s case recordings and internal emails between officers. Mrs Y has reported flooding on a number of occasions. Mrs Y says her first report was in 2012; however I have only had sight of reports made since 2014.
  2. In 2014 a Parish Clerk made a report on Mrs Y’s behalf. It appears there was some miscommunication around this report because the Clerk had misunderstood the extent of the flooding and reported it to be worse than what it was.
  3. Mrs Y made further reports in November and December 2015 and again in January 2016. Case recordings show that a highways officer inspected the site after the first report and found some pooling water on the highway, at a depth of eight inches. The officer did not conclude that any further action was needed.
  4. The Council’s ‘Flood Risk Officer’, who I will call Officer A, was also made aware of Mrs Y report. Officer A liaised with her colleagues in the highways department. An officer from the highways team, who I will call Officer B, responded and said:

“The Area Office have not had any direct correspondence with [Mrs Y]. We have had two symology cases to report flooding on this lane from [Mrs Y] the first one was 4 December this led to an inspection on 7th December. The Highway Officer noted at that inspection that this is a soak away and any pooling water would drain slowly”.

  1. Officer A replied: “I think we might be talking about risk to life rather than pooling water on the highway!” and asked “Do you know if the bridge (if it is a bridge rather than a ford) has been checked for blockages. She mentions logs and debris be washed down”.
  2. In response Officer B said: “Whilst there is no question the flooding in the photograph is severe this was clearly not witnessed by the Highway Officer at the point of inspection. As I am sure you will understand an inspection is only a snapshot in time and the Highway Officer can only respond to what he sees and on the occasion of the inspection completed on 7 December the level of flooding on the photo was not present just some localised pooling”.
  3. In the meantime Officer A wrote to the adjoining landowner in early January 2016 and asked him to ensure that the water course is maintained and to reduce debris to a minimum. The landowner’s representative responded. He pointed out that his client spends a lot of time trying to keep the pipes clear, and that the Council has never attempted to clear the blockages or remove obstructions.
  4. Officer B then spoke to Mrs Y on 21 January. The officer advised that Mrs Y’s concerns would be again passed to the flood risk team. Eight days later, and after some further emails and photographs from Mrs Y, Officer A emailed Mrs Y: “I am sorry you have not heard anything back. NYCC Highways are arranging for an officer to go out and check the pipes for blockages. I will ask then (sic) to update you”.
  5. After this exchange there is no evidence of further contact between Mrs Y and the Council until May 2016, some four months later, when Mrs Y emailed again asking for a further update.

Case law

  1. In her complaint to the Council, Mrs Y referred to some case law which she felt was relevant to her own case. In particular she referred to Bybrook Barn Centre Ltd v Kent County Council [2001]. This case found that authorities have a responsibility to take ‘reasonable’ action to prevent nuisance.
  2. Mrs Y feels that the inadequacy of the ford causes a nuisance. However the Council disagrees: it argues that it is a well-maintained ford which is not obstructing the passage of water. As such, it cannot be deemed a nuisance and so the provision of a bridge is not ‘reasonable action’.
  3. The Council accepts that flooding causes a temporary obstruction to the highway. The Council has referred to the case of Harper v Haden & Sons [1932] which it says demonstrates that there no claim for a legal remedy where the obstruction is ‘reasonable’ and ‘quantum’ in duration. The Council says the road is impassable in heavy rain to a greater extent than the present, and location and category of the road means the temporary obstruction is considered reasonable.
  4. However, in the case of Vernon Knight Associates v Cornwall Council [2013], the courts found a local authority had been liable for flood damage caused to a property when drains it had installed in a road, known to be a high flood risk, had become blocked. The authority’s system to prevent such blockages was adequate, because this action was normally undertaken by a road maintenance contractor on its own initiative, but for some reason it had not followed its normal practice for the two floods in question, for which there was no adequate explanation.
  5. The case above demonstrates that there is an expectation on authorities to respond to reports of blockages in addition to any general inspection duties it has.

Was there fault causing injustice to Mrs Y?

  1. The Council does have a statutory duty to maintain and repair publically maintainable highways. I accept the Act makes clear that this duty does not extend to highway improvement. Mrs Y believes that improvement to the ford, particularly through the provision of a bridge or some enhanced drainage channels, would resolve the flooding issue because water and debris could pass more freely. I cannot say the Council is at fault for not improving the highway. It has to consider proportionately when deciding on the priority of improvement works in the area, and due to the location and category of the road, the Council has decided that it will not fund the major improvement works suggested. I have no basis on which to criticise this decision.
  2. But the Council does have a duty to maintain and repair the access road, so I can consider whether any injustice has arisen from a failure to maintain the highway, or a failure to respond to reports of obstruction, blockages or disrepair in the ford.
  3. In December 2015 Officer A expressed her view that the flooding reported by Mrs Y could pose a risk to life. Yet there is no evidence to show the Council did anything in January to investigate this potential risk. Flooding on the access road can vary greatly, dependent on weather conditions. So, although a highways officer had found only a small amount of pooling in their visit some three weeks earlier, later photographs provided by Mrs Y appeared to show something more serious. And the findings of the December inspection, as pointed out by Officer B, showed only a ‘snapshot’ of time.
  4. I consider the Council should have done more in response to Mrs Y’s further claim in January; especially given that there was a danger posed by the water, which at this point was reported to be fast-flowing.
  5. I cannot say with any certainty whether the pipes in the ford are blocked as Mrs Y claims, and I cannot conclude what the cause of the problem is. However the Council is in a position to investigate the concerns that both she and the adjoining landowner have raised, and in my view it is necessary for it to do so.
  6. The Council’s failure to respond to Mrs Y’s reports in January 2016 caused her time, trouble and uncertainty. Had the Council investigated the concerns at the time of report, it may have been in a position to identify and repair a problem. Or it may have found that no actionable defects or disrepair existed.
  7. This leaves Mrs Y with uncertainty which the Council will remedy with the actions listed below

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Agreed action

  1. Within one month of my draft decision the Council will:
    • Inspect the pipe work at the ford in question to determine whether any disrepair exists, and if so, prioritise any necessary remedial work in line with its policy. The Council should clearly record its findings;
    • Apologise to Mrs Y for failing to respond to her reports in January 2016; and
    • Pay £500 to remedy the time, trouble and uncertainty Mrs Y has experienced as a result of the Council’s failure to respond to those reports.

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Final decision

  1. I have completed my investigation. There is fault causing injustice to Mrs Y which the Council has agreed to remedy with the above 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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