Summary: Mrs B complains that the Council delayed in carrying out works to the noisy drain next to her home. The Ombudsman has not found fault in the way the Council investigated Mrs B’s request for repairs but decided against this. The Ombudsman considers the apology already made a suitable response to the injustice caused by delays in responding to Mrs B’s enquiries.

The complaint

1. Mrs B complains that the Council has wrongly decided against repairs to a gully on the road next to her home. As a result, she continued to suffer noise nuisance from traffic driving over the gully for more than 18 months.

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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. 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. I have considered Mrs B’s complaint since she contacted the Council in October 2018. I have reviewed Mrs B’s written complaint and spoken with her. I have written to the Council and considered its response. I have had regard to the relevant law and the Council’s highway maintenance policy. I have also sent Mrs B and the Council a decision and invited their comments.

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What I found

Legal and administrative background

Highway noise

5. Councils have a duty, under the Environmental Protection Act 1990, to investigate complaints about a statutory nuisance. For a noise to count as a statutory nuisance it must unreasonably and substantially interfere with the use or enjoyment of a home or other premises, and/or injure health or be likely to injure health. However, highway noise is specifically excluded from the categories of noise which may be considered a statutory nuisance.

Maintaining the highway

6. Highway Authorities have duties under the Highways Act 1980 to maintain a reasonable level of safety and convenience for the travelling public. Their primary responsibility is maintaining the structural integrity of the highway and dealing with serious safety issues.
7. Although the Council has no specific duty regarding traffic noise, it has explained that it takes reports of noisy drain covers seriously and takes action to replace or reset covers. However, it is rarely possible to eliminate all noise because there may be residual noise when traffic passes over asphalt patches or trenches. Repairs may have a limited lifespan due to repeated over-running by traffic.
8. The Council’s policy on highways maintenance sets out the timeframes for undertaking highway repairs. It includes a series of matrices based on the different types of highway, the type of defect, and the degree of damage.
9. In respect of drain covers, ironwork which is noisy, worn, sunken, risen or rocking, but less than 25mm deep are put in Category 7 – potential future works.

What happened

10. Mrs B’s home is situated right next to an A road. There is a drain cover by the side of the road next to her house, surrounded by a patch of asphalt.
11. Mrs B has previously reported the drain getting blocked and noise from the gully and asphalt surround. The Council’s contractors replaced the gully grating in 2016. After further noise problems, they reset the grating in February 2018.
12. In October 2018, Mrs B reported online that a rumbling noise from the drain had returned. The Council acknowledged her report by email.
13. In February 2019, she reported that the drain was getting noisier and there was mud in the gutter. She was given the number of the District Council which arranged road cleaning the next day.
14. She contacted the Council again later that month about noise and further cracks in the asphalt. Officers visited and inspected the next day. Mrs B called again a few days later, saying the noise and cracks were worse and asking for officers to come and witness the noise from inside her home.
15. In early March, a highways technician called Mrs B and discussed the possibility of moving the drain further along. He said he would follow this up with a colleague who was currently on leave. He also asked Mrs B if she had contacted her local councillor.
16. The following month Mrs B called the highways technician who said the matter had been passed to another officer who he would ask her to call her. Mrs B called again a few days later and spoke with another officer who also said she would ask the officer to call, but Mrs B received no response
17. In June 2019, Mrs B called the highways team and was told that the local councillor had looked at the grating and a request for the area to be patched had been entered into the Council’s system, Mrs B contacted the highways department several more times in June and July and was told that the proposed works were shown on the system and there was a note for her to be contacted.
18. In August, Mrs B emailed her local councillor for help in getting the drain repaired. She called the highways technician who said he would get back to her but did not. Mrs B then made a formal complaint to the Council about the lack of response and the delay in carrying out works.
19. She received a response from the Highways Complaints Coordinator who apologised for the delay in responding to her concerns. The complaint response explained that some level of road noise was inevitable and, with a limited budget, the Council could not replace roadside gullies just because they were noisy or worn. Instead it would undertake such works based on the priorities set out in its policy. That said, it would try to undertake works where resources allowed.
20. As this gully had previously been reset more than once, the Council agreed to investigate further to check for any underlying structural issues. This was to have been carried out at night with the annual gully cleansing. This was planned for the end of August but postponed due to early October on traffic safety grounds.
21. The Council then explained that moving the gully was unlikely to be an option as it would likely have been placed at a low point for drainage. However, if problems and a potential solution were found, the Council would prioritise any works based on a range of factors, including flooding of houses or public safety. As the Council had around 500 sites identified for works, and a budget for works to around 100 sites per year, there might be a substantial delay unless there were other nearby works which could be combined to reduce costs.
22. There were further email exchanges, as Mrs B was keen for the inspection to be carried out before the scheduled inspection in early October. However, this was not possible as this involved traffic management and specialists.
23. The inspection was carried out under floodlights. As there was no level difference exceeding 25mm, this was considered a Category 7 defect. The drainage engineer oversaw the work and inspected the gully inside and out to check for underlying structural issues. The drainage engineer also followed up with a daytime site visit a week later to observe in daylight and live traffic.
24. The drainage engineer found the underground structure to be sound with no movement or cracking and the metal grating also sound with no movement. The Council decided to take no further action because there were no steps that could be taken to alleviate the noise issues in the current location. There was also no budget to relocate the gully. In any event, relocating would still leave a patch of asphalt outside Mrs B’s house which would also cause noise when driven over.
25. Mrs B disagreed with the Council’s findings and wrote asking why the asphalt was not going to be patched as previously suggested, and for officers to witness the noise from inside the house.
26. The Council responded that a drainage engineer had inspected the gully and asphalt (which was in good condition) and that no further action was to be taken. Mrs B was advised that she could complain to the Ombudsman.
27. In June 2020, the Council received a further report from Mrs B and her local councillor. The Council inspected and found evidence of deterioration. Major works were also planned which would make the A road unavailable for road works for some time. So the Council agreed the replacement of the gully lids and rebuilding underneath on both sides of the road. This has now resolved the noise problems for Mrs B.

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My assessment

28. It is clear that this has been a frustrating process for Mrs B and I appreciate that the noise from the road has caused her nuisance and annoyance over a lengthy period. However, the Ombudsman’s task is to consider whether there was fault in the way the Council dealt with matters and, if so, what injustice this has caused.
29. Mrs B contacted the Council on several occasions between October 2018 and August 2019 to ask for works to be carried out. During this period, officers discussed the possibility of patching the area or moving the drain, and a note was put on the system regarding the request to patch the area. It is clear that Mrs B was very keen to have works carried out, and there were several occasions where it appears that officers failed to follow up on contacts from her. However, officers had inspected the drain and I have seen nothing to suggest that the Council had made any commitment to undertake works within any set time frame.
30. Once Mrs B made a formal complaint to the Council about its response to her concerns, the Council investigated and inspected the patch, the grating and inside the drain, when it was able to schedule this. It found no evidence of defects at that stage which would warrant further action, and explained this to Mrs B.
31. I see no fault here. I consider that the Council undertook a proper investigation and it is not for me to question the engineer’s judgment that there were no works that warranted action at that stage, despite the earlier discussions about patching the area. I also see no fault in the Council not entering Mrs B’s home to hear the noise. The Council has explained that officers would not generally do so due to safeguarding concerns. In any event, the noise was not in dispute, rather the question was whether there was any action to be taken at that point.
32. It is clear that there were delays and failings in responding to Mrs B. However, I do not consider that this affected the timing of any works because none were agreed necessary. I consider the apology provided to be a sufficient response.
33. Lastly, I note that the Council has since undertaken works which have resolved the problems. However, this was in response to a deterioration and having regard to the fact that there would be a period when no works could be undertaken. I do not consider that this means that the Council was wrong not to take action earlier.

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Final decision

34. I have closed my investigation into Mrs B’s complaint because I do not consider that there was fault in the way the Council investigated Mrs B’s report of noise from the drain, and I consider that the apology already provided is sufficient remedy for the injustice caused by the occasions where officers did not respond to Mrs B’s requests.

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Investigator's decision on behalf of the Ombudsman