Summary: Mr B complained the Council failed to act when he reported a drain in the highway causing vibration in his property. There is no fault in how the Council considered Mr B’s concerns.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council failed to act when he reported a drain in the highway causing vibration damage to his property.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
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

4. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered Mr B’s comments on my draft decision; and
• gave the Council an opportunity to comment on my draft decision.

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What I found

Background

5. In 2017, following a report of problems affecting Mr B’s property a Council officer visited the site. That visit identified the gully grille rattling in the frame. The Council completed works to the gully in June 2018.
6. The Council received a further report of rattling in January 2019. An officer visited but did not identify any rattling.
7. Mr B reported further concerns in July 2019. Mr B suggested the manhole was low in the road which meant commercial vehicles or buses were dipping in and out of the drain which caused excessive vibration. Mr B suggested either raising the manhole to be flush with the road and the surrounding tarmac level or moving the drain into the kerb stone and levelling the tarmac.
8. A Council officer visited in August 2019. The officer recorded his view the gully was flush with the carriageway and not moving or rattling when driven over. The Council wrote to Mr B on 16 September to tell him that. The Council said it could only assess the visible deterioration of the highway and suggested Mr B contact either his insurance company or an independent surveyor to assess the cause of the vibration.

Highways Act

9. Section 41 of the Highways Act (the Act) says the highway authority for a highway maintainable at the public expense are under a duty to maintain the highway.
10. Section 58 of the Act says:
• ‘In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.’

The Council’s Highways Maintenance Policy & General Principles

11. The Council’s policy says it will carry out routine highway safety inspections to meet its statutory duty to maintain highways and to provide a special defence under Section 58 of the Act. This allows the Council to provide defence against actions brought by third parties for damages resulting from failure to maintain the highway provided it has an efficient and effective highway inspection regime, keeps thorough and detailed inspection records and has a reasonable system for repair and maintenance.

Analysis

12. Mr B says the Council failed to act when he reported the drain rattling and causing vibration in his property which has led to cracking of his plaster and render. As I say in paragraph 9, under the Highways Act 1980 the Council must maintain the highway. I am satisfied the Council has in place an inspection regime where it carries out an inspection of the road every month. Other than removing and installing a new gully in 2018 there is no evidence the Council identified any issues with the section of Mr B’s road he complained about. I am also satisfied when Mr B reported further concerns in 2019 the Council visited to inspect. During that inspection the Council did not identify any rattling or issue with the level of the drain. On that basis the Council decided to take no action. As the Council reached that decision properly after visiting the site I have no grounds to criticise it. As I said in paragraph 2, it is not the role of the Ombudsman to comment on the merits of a decision reached without fault. If Mr B is experiencing damage to his property though his insurance company may investigate to identify the cause. Other than that, only a court can decide liability for damage to Mr B’s property. The Ombudsman cannot do that.

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Final decision

13. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman