Decision : Not upheld
Decision date : 19 Dec 2018
The Ombudsman's final decision:
Summary: Mr F complains he was not notified about the temporary closure of the road his business is on, causing loss of earnings. He also complains the site did not meet health and safety standards. The Ombudsman has not found fault.
- Mr F complains about the Council's temporary closure of the road his business is on, in particular that:
- The Council did not notify him of the closure in advance
- The Council did not consult him about the diversion. Delivery vans therefore could not access his business, resulting in loss of earnings.
- The signage and works did not meet health and safety standards
- The contractors/sub-contractors verbally abused him
- His phone line was cut during the works causing a loss of his connection for a week
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries and:
- The Road Traffic Regulation Act 1984 (as amended)
- The Road Traffic (Temporary Restrictions) Act 1991
- The Road Traffic (Temporary Restrictions) Procedure Regulations 1992 (“the Regulations”)
What I found
- The Road Traffic Regulation Act 1984 gives councils powers to grant orders for temporary road closures. The Regulations set out the procedure to be followed. Councils must publish a notice of their intention to make an order in a local newspaper not less than seven days before making the order. Within 14 days of making the order, councils must publish a notice of “the making of the order”. The Regulations do not require councils to post site notices or write to residents.
- A housing developer can apply to the Council to close a road temporarily. The Council’s application form asks applicants to confirm they will consult with residents and businesses directly affected by the closure. Applicants are also asked to suggest an alternative route. Councils are not required to consult residents or businesses on the temporary diversion.
- Signage must comply with the Traffic Signs Regulations and General Directions 2016 and be erected in accordance with Safety at Streetworks and Roadworks code of practice and/or chapter 8 of the Traffic Signs Manual 2009.
- Councils, as Highway Authorities, may grant a street works licence under the New Road and Street Works Act 1991. The council will then inspect the works on the highway.
- There is no liability in law for a highways authority, or its contractors, for any loss of business as result of road works carried out under a statutory power or duty. The owner of a business would only have a claim if the loss was a result of some negligent action.
- Mr F’s business is opposite a new housing development. The housing developer applied to the Council to close the road that Mr F’s business is on, so that utilities could be installed. The road was to be closed from 28 February 2018 to 30 April 2018. The Council granted a street works licence.
- The Council published a notice of its intention to close the road in the local newspaper and on its website on 15 February 2018. The notice included details of the alternative route which could be used during the road closure. The Council published a notice of “the making of the order” on 22 February 2018. Road closure signs were installed two weeks before the works started and local councillors, emergency services and neighbourhood teams were informed.
- Mr F says he was not notified of the road closure and only found out about it on the first day as he was unable to access his business. He spoke to the developer’s contractor and the Council. A revised traffic management plan was put in place to enable access.
- Mr F says this access was restricted and lorries could not enter his business, resulting in loss of earnings. Mr F also says the diversion was a two-mile detour and he was concerned about health and safety on the site. He says there were no barriers or signs.
- After further discussions between Mr F, the Council and the developer, there was a meeting on 19 March 2018. A number of actions were agreed, including:
- Access onto the road would be maintained from one end.
- Mud/debris to cleared at access points and walkways.
- Path boards to be correctly fastened.
- Steel (rather than wooden) plates to be used on excavations.
- Additional traffic management and signage to prevent vehicles driving past closure signs and damaging grass verges.
- There were no signs indicating the location of Mr F’s business, but access had been provided once his requirements were known.
- Concerns about threatening behaviour by the contractor should be reported to the police and the phoneline problem was a matter for the developer
- Officers had visited the site and found the signage, lighting and guarding complied with the New Roads and Street Works Act 1991
- The Council published notices advertising the temporary road closure in line with the Regulations. It was not required to do more, nor was it required to consult on the diversion to be put in place. I therefore do not find fault.
- It was unavoidable the works would cause some degree of disruption and inconvenience. Signs were erected to explain the works, the road closure and diversion. I understand Mr F feeling aggrieved if his business was affected but I cannot conclude this was as a result of fault by the Council.
- It is unfortunate Mr F did not receive a notification from the developer, but this is not administrative fault by the Council.
- A contractor is not liable for any loss of business as a result of road works, but if Mr F believed any loss was due to negligence on the part of the contractor he may seek a remedy in the courts. Adjudication on questions of negligence usually involve making decisions on contested questions of fact and law. The Ombudsman cannot decide whether a body has been negligent and has no powers to enforce an award of damages.
- Mr F has sent photographs showing the works and fencing and in some the road surface appears poor. However the Ombudsman cannot determine whether the signing, guarding and works complied with required standards. That is the Council’s role. The Council has sent evidence it carried out inspections during and after the works and I have seen no fault in the way this was done. I cannot question its decision the works complied with the standards in the absence of fault in the way that decision was made.
- Mr F has a right to go to court, directly or through his insurers, if he considers the contractor is liable for damage to his telephone line. It is reasonable to expect Mr F to use that right of remedy because only the courts can decide whether there is any liability for the damage, who is liable for that damage and whether a payment should be made to Mr F.
- There was no fault by the Council. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman