Summary: Mrs X complained the Council failed to tell her about road works affecting her business. She also complained about the actions of the Council’s works contractor. The Ombudsman found some fault when Mrs X was not notified about a road closure, when contractors parked on her private land without permission, and in the Council’s complaint handling.

The complaint

1. Mrs X complained the Council failed to tell her of road works outsider her business premises on several occasions. This resulted in Mrs X having to close and lose trade.
2. Mrs X also complained the Council’s contractors trespassed on her private business premises with their works vehicles, used offensive language and caused damage to her property.
3. Mrs X would like a discount in business rates, an apology and compensation for the damage.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. As part of the investigation I have considered the following:
• Mrs X’s complaint and supporting information.
• The Council’s response to Mrs X’s complaint.
• The Council’s response to my enquiries.
• The Road Traffic Regulation Act 1984 (as amended).
• The Road Traffic (Temporary Restrictions) Procedure Regulations 1992.
• New Roads and Street Works Act 1991.
8. I provided Mrs X and the Council with a draft of this decision and gave them an opportunity to comment.

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What I found

9. Street works are necessary to provide and maintain utility and transport services. They are carried out by statutory undertakers, including utility companies and contractors. Road works are carried out to repair or improve the highway.
10. Consultation should be used where possible, including with local businesses, about the potential impact of the works. Residents should be notified in advance and a dedicated contact telephone number should be provided. The works should be publicised in the media where appropriate.
11. A temporary traffic regulation order is for temporary restrictions, such as a road closure, to allow road works or ensure safety at a sporting event.
12. The Road Traffic Regulation Act 1984 gives councils powers to make orders for temporary road closures. 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.
13. Councils are not required to consult residents or businesses on temporary diversions.
14. Street signs 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.
15. 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.

What happened

16. Mrs X runs a business placed on a main road in the Yorkshire countryside.
17. Yorkshire Water (YW) wrote to Mrs X on 10 November 2018 to say it was carrying out maintenance works in the area. It said it would be turning off the water supply on 14 January 2019 while the work took place.
18. Maintenance work started on 14 January. Mrs X provided me with photographs showing traffic lights positioned just before and just after the entrance to her business. As a result, Mrs X said she had to close as it was dangerous for vehicles to re-join the main road, which had a national speed limit, from her car park.
19. Mrs X said on 15 May 2019 a neighbour asked if she received a leaflet about resurfacing works. Mrs X checked with staff, who confirmed a leaflet looking like an advertisement for a contractor had arrived that day.
20. Mrs X told me she woke at 8am on 18 May to find contractor’s vehicles, including a lorry, parked in her private car park, and blocking access. Mrs X said she asked the contractors to move their vehicles, but they refused, using offensive language. She said the contractor’s heavy vehicles damaged the cover of her kitchen’s grease trap, costing thousands of pounds to repair. Mrs X could not open for business until the contractor’s left at 2pm that day.
21. In June 2019 Mrs X found out on social media the Council was planning road closures near her business from 14 to 19 June 2019 for road works. She contacted the Council for information but said staff were unhelpful, saying Mrs X must know about the works if she had seen it on social media.
22. Mrs X complained to the Council on 4 June 2019. She said:
• The road outside her property was dug up for roadworks on 14 January without warning and traffic lights made access to dangerous.
• The Tour de Yorkshire (TDY) road closures meant her business had to close twice, costing £2,000 in lost income.
• She was only given 3 days’ notice about works in May 2019. The contractors parked on her private land without permission, were shouting and swearing, and damaged her property.
• She was not told about road closures in June 2019 which affected her business, she found out on social media.
23. Mrs X said the Council delivered a letter to her on 4 June 2019 giving details of the works due to start on 14 June 2019. The Council said it forgot Mrs X when it told others.
24. Mrs X provided me with a photograph of a sign the Council put on the road on 13 June 2019. It confirms Mrs X’s business is open and to find an alternate route. Mrs X was unhappy because the road was still open at this point and there is no information about what alternate route to use.
25. The Council responded to Mrs X’s complaint on 26 June 2019. On the resurfacing work carried out in May 2019, the Council said it put up warning signs on 3 May. Its contractor delivered leaflets on 15 May. The work did not prevent access and finished within a day, on 18 May, without a road closure.
26. The Council upheld Mrs X’s complaint about its contractor parking vehicles on her private property. It said it passed details to the contractor, including about conduct of workers and damage allegedly caused by works vehicles to Mr X’s grease trap.
27. About the June 2019 resurfacing works, the Council said it told residents and businesses along the road closure. It also placed signs on the road a week in advance which included full details. It cannot tell all road users, so it is standard practice to just tell those within the extent of the works. However, the Council accepted in this case it would have been suitable to tell Mrs X. It stressed the road would still have been closed as it is not wide enough to keep traffic in both directions with temporary lights. It also said a diversion was unsuitable in this case due to the route length and increased time and costs.
28. The Council apologised for the way Mrs X found out about the resurfacing works, the lack of communication and any upset caused.
29. On 28 June 2019, the Council wrote to Mrs X separately responding to her comments about the TDY and works carried out by Yorkshire Water (YW).
30. The Council said YW carried out repairs to a hydrant outside Mrs X’s property. This started on 14 January 2019 and finished on 15 January. The works used traffic signals, as per Safety at Street Works Code of Practice (October 2015) with a 40mph speed limit. The Council said its duty is to record, and coordinate street works only. YW is responsible for telling bordering premises under New Roads and Street Works Act (1991).
31. On the TDY, the Council said it closed the road under section 16a Road Traffic Regulation Act using a rolling road closure of about an hour by police escort as the race passed. This was necessary for an international sporting event. The Council placed warning signs on the road two weeks in advance and it wrote to affected properties.
32. The Council did not uphold the complaint. It made efforts to minimise disruption in both instances. It said disruption in January 2019 was minimal and did not prevent access. It could not have done works at a time that did not conflict with Mrs X’s business and it could not safely do the works any other way. However, it said it would raise the issue of warning residents and businesses with YW.
33. It said the TDY is an annual event attracting much interest. The method of traffic control used was the most effective possible for the event. It said the event was a prestigious one, given government mandate, and it undertook proper advanced planning.
34. Mrs X emailed the Council on 28 June 2019 as she was not happy with the complaint responses. She asked for:
• Discounted business rates.
• An apology.
• Details of how the Council will share information with her about future road closures for works.
• Information on planned works in the coming 12 months which may affect her business.
35. Mrs X said on 8 July 2019 the Council’s contractors again used her private car park for its work vehicles without her permission. The Council did not tell Mrs X about the works.
36. The Council noted Mrs X’s dissatisfaction on 25 July 2019. It said its two departments had dealt with her complaint and it would check to see if there were any outstanding issues which it needed to address.
37. Mrs X contacted the Council on 7 October 2019 to say she had complained to the Ombudsman because the Council had not responded. She also asked about making a subject access request.
38. The Council responded on 8 October 2019. It said its last response had confirmed there were no grounds to move the complaint to stage two, but its complaints team should have responded about the further points raised. It apologised for the delay. The Council said it had passed her subject access request to its information governance team.
39. The Council sent a further email to Mrs X on 13 November 2019. It apologised again for not responding to her further queries. It provided a copy of the template for letters sent to residents, created in April 2018. It said its stage one response explained advanced warning signs and leaflets from contractors.
40. The Council said its contactor’s loss adjuster was dealing with Mrs X’s damage claim and had contacted her for more information. The contractor will provide a final response once it knows the result.
41. In future, the Council said it will aim to tell people earlier and have more detailed consultation on works. It said the highways department cannot award reduced business rates. It apologised again.
42. On future works, it planned some in May, June, or July 2020 but there is no programme yet. The Council is not proposing road closures. It is aware of past issues and the need to consult with Mrs X.

Response to enquiries

43. The Council told me YW must comply with national safety legislation when carrying out works. The works Mrs X complained about used signs and signals in line with the Safety at Street Works Code of Practice (October 2015) for works on roads with speed limits of 40mph or more.
44. The Council will consult Mrs X before future surfacing works, and it has told its engineers. The contractor is aware its vehicles must not park in Mrs X’s car park.
45. The Council said its standard practice is to write to business and residents near works. It is not practical to tell everyone. That is why it uses advanced road closure signs. It did consider the needs of local businesses by restricting the works to 9am to 3pm on weekdays and keeping the road open outside these times.

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Analysis

46. I have seen no evidence of fault in the Council’s planning of road closures for the TDY. It was a major event with media coverage and the Council sent advanced warning letters to businesses and residents as well as going through the formal procedure of a Temporary Traffic Regulation Order.
47. The work carried out in January 2019 was the responsibility of YW and I cannot fault the Council for YW’s failure to fully tell Mrs X. The Council will tell YW to ensure it better tells people in future.
48. Mrs X has sent photographs showing the position of temporary traffic lights while YW carried out the works. Mrs X thinks it did not provide safe access from her business. The Ombudsman cannot decide whether the works met safety standards. The Council was satisfied YW used traffic lights under the correct standards and access was kept. I have seen no evidence of fault.
49. It was not standard practice for the Council to tell people about road closures if their property is not on the route of the works. However, the Council accepts it should have told Mrs X about the works in June 2019. The Council has apologised and said it is aware of the need to inform Mrs X of works affecting her business in future. This is welcome.
50. However, even if the Council had told Mrs X about the road closure, it would still have taken place. A degree of disruption and inconvenience was unavoidable. I therefore do not consider Mrs X suffered a significant injustice through the Council’s failure to tell her.
51. The law is clear local authorities do not have to provide compensation for the effect of roadworks. The Council is therefore not liable for any loss of business Mrs X suffered.
52. The Council accepted its contractor should not have parked on Mrs X’s private land. Despite the Council raising this with the contractor, it happened again shortly after. That was fault. It caused Mrs X avoidable frustration and distress.
53. The contractor was working on the Council’s behalf. The Council therefore assumes responsibility. It must ensure it takes effective measures to prevent the same issue recurring. The Council told me it discussed the issue with the contractor, and it has been noted on their work sheet for surface works in 2020 and 2021. I consider this action to be suitable.
54. I understand the contractor’s loss adjuster started to look into Mrs X’s claim about damage to her property. She is free to continue that process or Mrs X has a right to go to court to seek compensation.
55. The Council did not progress Mrs X’s complaint to stage two because it considered its stage one responses dealt with her complaints and she was raising new issues it had not considered. However, it failed to tell Mrs X she could complain to the Ombudsman if she remained unhappy with its stage one responses. That was fault. I do not consider it caused an injustice because Mrs X was aware of her right to the bring her complaint to the Ombudsman and did so.
56. The Council accepted it failed to provide a timely response to Mrs X’s following the further issues she raised. Its failure caused Mrs X added avoidable frustration.

Agreed action

57. Within eight weeks of my final decision, the Council will:
• Apologise to Mrs X for the actions of its contractor and for its lack of response to the further issues she raised.
• Pay Mrs X £200 to recognise the avoidable frustration and distress its faults caused.

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Final decision

58. I have completed my investigation. I found fault when Mrs X was not notified about a road closure, when contractors parked on her private land without permission, and in the Council’s complaint handling.

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Investigator's decision on behalf of the Ombudsman