Kingston Upon Hull City Council (19 004 542)

Category : Transport and highways > Highway repair and maintenance

Decision : Not upheld

Decision date : 06 Dec 2019

The Ombudsman's final decision:

Summary: Mr B says Council has failed to deal with vibrations he believes are caused by a substandard repair to the highway outside his home. Mr B says the noise created by these vibrations disturbs his sleep and he is worried they are damaging his property. The Council has assessed the highway and made repairs. The Council decided any vibrations felt by Mr B would not damage his property. The Ombudsman has not found fault with how the Council made this decision. The Ombudsman cannot question if a council’s decision is right or wrong if there was no fault in the way the decision was reached.

The complaint

  1. Mr B says Council has failed to deal with vibrations he believes are caused by a substandard repair to the highway outside his home
  2. Mr B says the noise created by these vibrations disturbs his sleep and he is worried they are damaging his property.

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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. 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)
  3. 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 considered:
    • Mr B’s complaint and the information he provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mr B and the Council had the opportunity to comment on a draft decision.

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What I found

Legislation and Guidance

  1. The Council has a duty under Section 41 of the Highways Act 1980 to maintain all its highways that are maintainable at public expense.
  2. The duty is 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.” 
  3. Routine highway maintenance requires councils to carry out routine inspections of the highway surface and to have a system that receives and assesses incoming reports of damage and allocates a reasonable priority to necessary repairs.
  4. If a member of the public considers a highway is out of repair, Section 56 of the Act enables any member of the public to apply to a magistrates' court for an order requiring the highway authority to put the highway back in repair within a specified time.

The Council’s Carriageway Vibration Policy

  1. I have set out below some key points from the policy.
  2. The Council operates a risk-based approach to highway maintenance. This is in line with recommendations set out in the ‘Well-managed Highway Infrastructure’ Code of Practice for Highway Maintenance, published in October 2016.
  3. The Council’s Carriageway Vibration Policy says complaints about the carriageway will be inspected and if it finds a defect is the cause of unacceptable vibration it will act, subject to the availability of resources. The current standards are defined by ‘The Design Manual for Roads and Bridges 1992’ and any successor document/s.
  4. The Council’s Carriageway Vibration Policy says if there is a disagreement about highways maintenance, the complainant is responsible for organising an independent survey.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. Mr B lives on a dual carriageway. In September 2018 the Council surveyed the quality of the road. The scanner survey gave the stretch of road outside Mr B’s house a road condition indicator value of 58. Values between 40 and 100 suggest some deterioration which should be investigated to decide if any treatment is needed. A value greater than 100 suggests the stretch of road is in poor condition and likely to need maintenance within a year.
  3. In December 2018 Mr B contacted the Council because he was worried about vibrations he believed were caused by cracks in the road. Mr B said these cracks were the result of loose concrete planks below the surface of the road. He said the vibrations were impacting on his sleep and he was concerned they would damage his property. Mr B said the road defect was the same as one he reported to the Council in 1990 and was repaired in 2000.
  4. A Council engineer visited the site within a week of Mr B raising the issue. The Council found two defects on the road. These were a sunken manhole cover and a crack in the road opposite Mr B’s property. The Council officer recorded he could not feel any vibrations from the road during the visit.
  5. The Council decided it should repair the defects and did so in January 2019.
  6. Mr B complained about the repairs the Council had completed in February 2019. Mr B stated there was a major fault in the structure of the road which the repair had not fixed. He said the vibrations were still impacting on his sleep and he was worried they would damage his property.
  7. The Council responded to Mr B. It said its September 2018 scanner survey found no structural failure with the highway. The Council explained how it repaired the crack in the road and stated, “This is the most appropriate repair and widely used in this type of circumstance and has proved to be very effective”. The Council said the ground conditions in Hull could cause vibrations.
  8. In February 2019 Mr B asked for his complaint to be escalated to stage 2. The Council responded in March 2019. It repeated the information from stage 1 and invited Mr B to seek independent advice about the cause of damage to his property.
  9. Mr B contacted the Council in April 2019 to say he disagreed with its stage 2 response. Mr B requested the Council used a deflectograph to survey the road or meet with him at the site to discuss his complaint.
  10. The Council carried out a site visit with Mr B. The Council explained the following during this meeting:
    • the defect was not caused by a structural failure in the concrete base; and
    • low level vibration readings are prevalent throughout Hull because of the poor ground conditions and while these are noticeable, they are well below the threshold where structural damage will be caused to properties.
  11. During the site visit, the Council noticed there was unevenness in the road where two separate repairs had been completed. The Council told Mr B it would carry out a further repair to even the surface of the road. It said this repair would have to be made during a quiet period.
  12. The Council officer noted, “during the 45 minute meeting in which numerous buses and HGV’s passed, virtually no vibrations were felt through the footpath”.
  13. The Council tried to repair the road surface in May 2019 but could not because the road needed to be closed to undertake the work safely. The Council arranged for the road to be closed in July 2019 and the repair was completed.
  14. In May 2019 the Council rejected Mr B’s request for his complaint to be considered by a member complaints panel. The Council explained “The Council’s Highways officers have concluded that the vibration is in line with acceptable limits and in common with many other sites across the City. A Member Panel is not able to overrule the professional judgement of a qualified specialist and has no scope to directly intervene in a technical dispute.”
  15. Mr B says he continues to feel vibrations and they have got worse since September 2019.

Analysis

  1. The Council acted quickly when Mr B told it about disrepair to the highway. The Council visited the site and carried out repairs within six weeks of him reporting the problem. When Mr B raised concerns about how the Council had fixed the road, it investigated and carried out more work.
  2. Mr B believes the Council has not fixed the highway properly and this causes his house to vibrate. The Council investigated Mr B’s concern using its vibration policy, 2006 traffic induced vibration report, 2018 scanner survey and information gathered during site visits. The Council decided that although Mr B may feel vibrations, they were well below the level which would cause damage to a property.
  3. The Ombudsman is not an appeal body and we cannot question if a council’s decision is right or wrong if there was no fault in the way the decision was reached. The Council assessed the stretch of road outside Mr B’s property and undertook repairs. The Council decided the vibrations experienced by Mr B were within acceptable limits. This is a decision the Council was entitled to make. I have not seen any evidence of fault in how this decision was reached and so I cannot question its merits
  4. If Mr B disagrees with the Council’s decision, he can apply to a magistrates' court for an order requiring the highway authority to put the highway back in repair within a specified time.

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Final decision

  1. I have completed my investigation and do not uphold Mr B’s complaint.

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Investigator's decision on behalf of the Ombudsman

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