Summary: Mr C complains that since the Council resurfaced the highway outside his house, his family has been experiencing noise and vibrations from use by heavy goods vehicles which affects their sleep. The Ombudsman has found fault in some of the Council’s communication but considers the Council’s offer of an apology is enough to provide a suitable remedy for this.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains that since the Council resurfaced the highway outside his house, his family has been experiencing noise and vibrations from use by heavy goods vehicles. Mr C says he has asked the Council to visit him at home to experience the problem first-hand but it has refused. Mr C says the issue is affecting his family’s ability to sleep.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third-party details.
7. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. The Highways Act 1980 section 41 provides that a highway authority must maintain all its highways that are maintainable at public expense. It also covers a highway authority’s duty to repair those highways when that becomes necessary.
9. There are no statutes or regulations prescribing the standards to which highways authorities should maintain highways.  In the case of Rider v Rider (1973) in the Court of Appeal, Lord Justice Sachs said the highway authority’s duty: “is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them.”
10. There are various British Standards that must be complied with.

Key events

11. The Council’s contractor completed resurfacing works to an ‘A’ road which is a dual carriageway in October 2018. Mr C lives next to this road.
12. Mr C contacted the Council in November to say there was a defect in the road surface which meant passing heavy goods vehicles (HGVs) made a banging noise and his house shake. Mr C suggested the problem may be a particular cats eye and explained the disturbance was affecting his sleep.
13. The Council visited the site in November to check for any defect including the cats eyes. The officers noted a BT cover but this was level and did not find any defect or hear any unusual noise from passing traffic. The Council also reviewed the testing information from the works which was all within the relevant tolerances. The only exception was the BT cover that had already been adjusted after the resurfacing as confirmed during the visit. The Council wrote to Mr C to explain the results of its visit, traffic observations and review of the testing information.
14. The Council has provided the Ombudsman with site visit photographs and the testing information.
15. Mr C responded to the Council at the end of November to say there was something causing HGVs to bounce creating a banging noise and movement to his property. Mr C asked that officers visit his property.
16. The Council contacted its contractor in early December and asked it to investigate the site further. The contractor visited the site in the new year and observed the traffic for 30 minutes and recorded the decibel levels. The contractor also drove back and forth along the road using both lanes but could not identify any unusual noise. The contractor did note what was described as a ‘slight ripple’ around one joint which was not particularly noticeable. The contactor checked this joint which was found to have ‘very slight crazing’ and matched this area with the site testing results and found it complied with the relevant tolerances.
17. The Council wrote to Mr C in early February to confirm it had not found any defect in the new surface and provided an apology for the delay in getting back to him. This initial reply did not address Mr C’s request for a visit. The Council subsequently confirmed to Mr C that it would not visit his property as following site visits it could not identify any defect in the road surface.
18. The Council has confirmed it has not received reports from any other residents following the works.

My consideration

19. In its response to the Ombudsman, the Council explained it considered the merits of agreeing to a home visit but did not believe this would be a productive use of resources. The Council points to the visits by its officers and contractor which found no evidence of loose cats eyes or other defect in the works.
20. The Council has found a slight deviation in the carriageway profile close to Mr C’s property which is described as the joint between surfacing shifts. The joint has been inspected and measured as being within the tolerance as provided by the relevant British Standard. The Council does not consider intervention work is required. In these circumstances, the Council does not consider there is any realistic prospect of there being a different outcome following a home visit.
21. The Ombudsman would normally consider it preferable in such cases for a council to visit the person affected at home to try and witness what they report. However, the Council has responded to Mr C’s reports and taken proportionate action in the absence of any other reports. Given the Council’s site visits and assessments I do not consider, on balance, that it is fault for the Council not to complete a home visit. In these circumstances, the Ombudsman has no grounds to insist the Council make a home visit.
22. The Council accepts it could have explained this position to Mr C in more detail and has offered to apologise to him for not doing so. I would consider such an apology would be enough to remedy any injustice caused here.

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Agreed action

23. The Council will write to Mr C within one month of my final decision to apologise for not providing a more detailed explanation for its decision not to complete a home visit.

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Final decision

24. I have completed my investigation. This is because although I have found some fault in the Council’s communication, I consider the agreed action above is enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman