Summary: Mr B complained the Council failed to act when he reported damage to his road causing noise and vibration in his property. There is no fault in how the Council dealt with the issue.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council failed to act when he reported damage to his road causing noise and vibration in 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; and
• gave the Council and Mr B an opportunity to comment on my draft decision.

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What I found

Background

5. In December 2017 Mr B contacted the Council. Mr B said the road surface outside his property had sunk following a cable laid across the road. Mr B said this caused his house to shake when large vehicles passed over the sunken surface. An officer visited and identified a defect in the road which did not meet the Council’s investigatory level. The Council therefore took no action.
6. The Council received two reports of a pothole on Mr B’s road in 2019 but did not identify a pothole when an officer visited.
7. In May 2019 Mr B contacted the Council again. Mr B said sinking in the road surface caused shaking when large vehicles passed his house. An officer visited and identified a trench across the full width of the carriageway which measured 25 mm in depth. The Council did not act as the level fell below the Council’s investigatory level.
8. Mr B contacted the Council with the same concerns in July 2019. Mr B told the Council he was awoken by heavy farm vehicles passing day and night as his house shook. The Council told Mr B the problem with his road did not qualify for investigation under the Council’s maintenance strategy. The Council suggested Mr B get an independent vibration survey or contact his insurance company. The Council told Mr B if any resulting report confirmed the issue related to maintenance of the highway it would review the case.

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.’

Council policy

11. The Council’s Highways Maintenance Policy and General Principles 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 there is an efficient and effective highway inspection regime and thorough and detailed inspection records are kept plus there is a reasonable system for repair and maintenance.
12. The Council’s Maintenance and Inspections Strategy for Carriageways, Footways and Cycleways says the Council shall carry out safety inspections. It says the main purpose of a safety inspection is to identify defects likely to be a source of danger or of inconvenience to the highway user. It says all defects that meet or exceed the investigatory levels are recorded. For depressions in the road the policy says the investigatory level is 50 mm depth.

Analysis

13. Mr B says the Council failed to act when he reported sinking in the road outside his property, causing vibration when heavy vehicles go past. As I said in paragraph 9, the Highways Act 1980 requires the Council to maintain the highway. I am satisfied the Council has in place an inspection regime where it inspects Mr B’s road every three months. I am satisfied the Council has inspected Mr B’s road on several occasions since 2017 and has identified the depression Mr B complained about. As that depression only measures 25 mm though the Council has decided to take no action other than continuing to monitor. I understand Mr B’s concern about that. However, the Council sets priorities for depressions in the road. Under that the Council does not investigate unless the depression is at least 50 mm deep. In this case the depression is 25 mm. I am therefore satisfied the Council has applied its policy correctly, although it could have provided a more detailed explanation about why the depression did not meet the Council’s investigatory level when it responded to the complaint. It is not the Ombudsman’s role to comment either on the merits of the Council’s decision or on how it decides to set priorities. As I am satisfied the Council has applied its policy correctly and has done so after visiting Mr B’s road several times I have no grounds on which I could criticise it. If Mr B is experiencing damage to his property though his insurance company may investigate to identify the cause and then liaise with the Council should it identify an issue with the road surface.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman